Claimant depositing waste material onto farmland and laying hard surfaces and tracks – Council serving enforcement notices on claimant requiring removal of waste material – Inspector dismissing appeals against notices – Whether inspector erred in finding hard surfaces were structures for accommodating livestock – Whether inspector should have considered varying enforcement notices and allowing part of waste material to remain on site – Part 6 Class A1(d) of Schedule 2 to Town and Country Planning (General Permitted Development) Order 1995
The claimant, which owned and operated a farm, had, since 1992, deposited large quantities of waste material onto the land to make hardstandings and tracks. The second defendants, Three Rivers District Council (the council), served two enforcement notices on the claimant. The first alleged a material change of use of the land from agricultural use to agricultural use and the unauthorised importation and deposit of waste materials. The notice required the removal of all the waste material deposited on the site. The second notice alleged the unauthorised carrying out of engineering or other operations, including the laying of hard surfaces and a track. It required the removal of the hard surfaces and track and all other materials stored on the land.
The claimant appealed against both notices pursuant to section 174 of the Town and Country Planning Act 1990. In her decision letter, the inspector found, inter alia, that the two hardstandings were used as a feeding area for sheep. She therefore concluded that they were not permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO), since they were structures “for accommodating livestock” within Part 6, Class A1(d) of Schedule 2 to the GPDO. The inspector dismissed both appeals.
The claimant appealed, pursuant to section 289 of the 1990 Act, on the grounds, inter alia, that the inspector: (i) had erred in her interpretation of “accommodating” in Class A1(d); and (ii) should have varied the requirements of the enforcement notices to permit appropriate quantities of waste material “reasonably necessary for the purposes of agriculture” to remain on the site. The judge allowed the appeal, holding that “accommodating” or “accommodation” commonly connoted some form of habitation. A surface upon which sheep periodically fed did not fall within that definition, and, accordingly, the inspector had misinterpreted that part of Class A1(d). The judge further held that the inspector could, and should, have explored the possibility of requiring the claimant to remove only the offending material and that the decision to require the claimant to remove all the waste material from the site was irrational. The first defendant Secretary of State appealed.
Held: The appeal was allowed.
1. Although the judge had been correct to say that accommodation commonly denoted some form of habitation, it was by no means the only use of the word. The word came from the Latin “accommodatus”, meaning “suitable”, and what was suitable depended upon the context. On that basis, the inspector had been entitled to conclude that the provision of the hardstanding was to be described as works for accommodating livestock, because the area was used for feeding the sheep. The fact that it was also used by livestock lorries did not mean it was not used for accommodating livestock.
2. The inspector had been entitled not to vary the terms of the enforcement notices. The proper course for an appellant who appealed on ground (f) of section 174(2) of the 1990 Act was to specify to the Secretary of State, without prejudice to his main contention, his fall-back position, and to indicate what variation to the notice it was submitted should be made. In the instant case, the claimant should have indicated to the inspector how much hardstanding was reasonably necessary for the purposes of agriculture. Any failure by the inspector to advert in her decision letter to the possibility of asking for further submissions did not amount to an error of law. It was not reasonable to go to court, as in the instant case, and ask for the case to be remitted to the inspector so that she might ask for further submissions as to what was reasonable.
Mary Macpherson (instructed by Malcom C Brown Solicitors, of Slough) appeared for the claimant; Michael Gibbon (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Thomas Elliott, barrister
