ELIZABETH LANCASTER-THOMAS v TEIGNBRIDGE DISTRICT COUNCIL LCA/167/2005

UPPER TRIBUNAL
LANDS CHAMBER
LCA/167/2005Case No LCA/167/2005
Between
ELIZABETH LANCASTER-THOMASApplicantTEIGNBRIDGE DISTRICT COUNCILRespondent
Before
His Honour Michael Rich QCDate 20 July 2006Property: Dwellinghouse with adjoining land,, “Barncottage”, Venn Farm Lane,, Teignmouth, Devon,, TQ14 9PBCatchwords: COMPENSATION – Sections 107 and 108 of the Town and country Planning Act, 1990 – use of agricultural land – Preliminary Issue not determinative.
[1]This is the decision on a preliminary issue agreed between the Parties in a notice of reference dated 11th August 2005, whereby the claimant sought compensation under sections 107 and 108 of the Town & Country Planning Act 1990. The determination is, at the parties’ request, made after consideration of written submissions without a hearing.[2]The notice of reference exhibited a notice of claim which sought compensation for the refusal of planning permission on 13th June 2005 for “the erection of a fence/gate to enclose the allotment adjacent to the Barn Cottage garden”, as shown on a plan indicating a fence 30m by 12m within a field adjacent to the residential curtilage of Barn Cottage. A gate from such enclosure to the rest of the field is shown, but no separation from the curtilage of Barn Cottage. I do now have a copy of the Decision dated 13th June 2005, refusing such application and referring to “Location: Teignmouth – Barn Cottage Higher Venn Farm Proposal: Erection of fences and gate to rear of”[3]The field was included in an application for a certificate of lawfulness for “use as domestic cartilage” which was refused by the Authority on 17th February 2004, a decision which was upheld on appeal on 2nd September 2004.[4]On 14th March 2005 the Authority made a direction under Article 4 of the General Permitted Development Order 1995 withdrawing the Claimant’s permission under Clause A of Part 2 of the Town and Country Planning (General Permitted Development) Order 1995 for The erection, [or] construction ..of a gate, fence or other means of enclosure” [on the land][5]There is no dispute that upon the refusal of planning permission for development previously permitted under the Order the Claimant is entitled to compensation under s.107 of the Act, if she has thereby sustained loss or damage.[6]The notice of claim made it clear that the application for enclosure had been made because the Claimant had been advised that “the existing garden of the House [that is Barn Cottage] was too small to make development [for which she had permission] profitable”.[7]It was in these circumstances that the President by Order dated 6th October 2005 directed the determination of a preliminary issue “Whether the land referred to … could have been used prior to the Article 4 direction as an extension of the garden of Barn Cottage without the need for planning permission in that regard.” 2[8]On the material placed before me, there does not seem to be any room for doubt that the answer to that question would be that it could not have been so used. That, as it appears to me, would therefore have been likely to be determinative of the claim for compensation, because in the absence of a right to use the land as part of the garden of Barn Cottage, there was no suggestion that the Claimant had sustained loss or damage.[9]It was no doubt for that reason that the Claimant sought permission to vary the preliminary issue and agreed a revised issue as follows:
“Whether the land referred to .. could have been used prior to the Article 4 direction as an allotment on agricultural land adjoining the curtilage of Barn Cottage the boundary of which allotment could be enclosed with fences and a gate as shown on the plan, without the need for planning permission in that regard.”
[10]By Order dated 29th November 2005, I agreed to this variation of the preliminary issue “if both parties are satisfied that the agreed preliminary issue will be useful to have determined”. I have received no submission to suggest how the determination of this question will assist in the determination of the question whether the Claimant has sustained any loss or damage by the refusal of planning permission for the erection of a fence which would not, so far as any evidence goes, add to the value of the land for any lawful purpose.[11]That this is indeed the position is suggested by the Claimant’s request to “amend” the claim to seek compensation for the refusal of permission on 3rd June 2005 for fences and gates to form twenty enclosures. I refused that application by Order dated 21st June 2006. I cannot prevent the Claimant from making a further reference in respect of that refusal, if she wishes to do so, but I have directed that, if made, it should not be allowed to proceed until this reference has either been withdrawn or finally disposed of.[12]By paragraph 13 of their representations dated 18th November 2005 the Authority made clear what so far as I can see has never been in issue that:
“The Claimant does have the benefit of a certificate of lawful development dated 12th April 2005 which provides that the land could be used as allotments because this would fall within the definition of agriculture and therefore be an exception to development requiring planning permission as set out in section 55 of the Town and Country Planning Act 1990. It is correct that prior to the article 4 direction the land, which is the subject of this claim, could be used as an allotment and could have been enclosed by fencing and a gate.”
[13]It follows that the Preliminary Issue as agreed between the parties must be answered that the land could have been so used.[14]The submissions made on the Claimant’s behalf dated 8th December, 2005, however conclude at paragraph 4(c) that: 3 “The Claimant respectfully requests the Tribunal to find that the Preliminary Issue should be resolved in her favour and that the Authority is thus liable for compensation” Having regard to the way that the claim was put however (see paragraphs 6 to 8 above) the words which I have placed in italics are a complete non sequitur.[15]Whether in the light of this decision on the agreed Preliminary Issue, the Claimant wishes to adduce evidence as to the loss or damage which she claims to have sustained by the refusal of planning application 05/01402/FUL on 13.June 2005, is a matter for her. If she does, it would seem to me, as presently advised, that it would be necessary to call expert evidence and I would wish to know the parties’ proposals in that regard, before giving further directions. Dated 20 July 2006 His Honour Michael Rich QC 4