Town and country planning — Permitted development — Whether inspector applied proper test in deciding whether erection of building was permitted development under the General Development Order 1988
Mr Clarke, is the owner of some 40 ha of farmland lying south of Long Clawson,
Vale of Belvoir, Leicestershire — In late 1989 or early 1990 Mr Clarke erected
on part of the land a building — On April 9 1990 Melton Borough Council, the
local planning authority, issued an enforcement notice and served a copy on Mr
Clarke alleging a breach of planning control, namely the erection of the
building without the benefit of planning permission — The notice required Mr
Clarke to ‘remove the unauthorised building from the site and return the land
to agricultural use’ — Mr Clarke appealed against the enforcement notice on
grounds (a), (b), (c), (g) and (h) then contained in section 174(2) of the Town
and Country Planning Act 1990 — In his decision letter the inspector described
the building as being built in brick, with a tiled roof; there was an inner
wall of blockwork, with a cavity between it and the brickwork, and seven
windows had been bricked up in the outer leaf only — The inspector also found
that the appellant had had no experience as a farmer but, following refusal of
planning permission for an equestrian centre and accompanying dwelling,
designed the building with the intention of developing a sheep unit as an
alternative — Further, the inspector was satisfied that Mr Clarke was engaged
in an agricultural trade or business by reason of keeping and trading of sheep
on a substantial scale — The inspector came to a finding of fact that the
building was not designed for the purposes of agriculture and dismissed the
appeal — Mr Malcolm Spence QC (sitting as a deputy judge of the Queen’s Bench
Division) allowed Mr Clarke’s appeal, expressing the view that the development
was permitted by article 3 and Part 6, Class A of Schedule 2 to the General
Development Order 1988; he concluded that the inspector made an error of law by
holding that the building was not ‘reasonably necessary’ for the sheep unit,
whereas he should have considered whether it was ‘reasonably necessary’ for the
purposes of agriculture within the unit — The judge further held that some of
the inspector’s findings of fact in relation to the ‘reasonably necessary’ test
were absurd and in relation to the design for the ‘purposes of agriculture’
test were perverse — The Secretary of State for the Environment appealed
‘reasonably necessary’ for, and if so is it designed for, the purposes of the
agricultural activities which might reasonably be conducted on this unit? — The
inspector did restrict himself to considering whether the building was
reasonably necessary for, and was designed for, a sheep unit alone — The
inspector was not obliged to cast about to contemplate some possible but
unlikely agricultural activity on the land which had not been suggested by or
on behalf of Mr Clarke — Accordingly, the inspector had not erred in law by
restricting himself to consideration only of a sheep unit — The proper test as
to whether a building is designed for the purposes of agriculture is set out in
the judgment of Lord Parker CJ in Belmont Farm Ltd v Minister of
Housing and Local Government — The inspector did refer to three features of
the building which were relevant to his decision that the building was not
designed for the purposes of agriculture, namely the inconvenience of the
doorways as access and egress for machinery, the cavity walls and the fact that
there had been nine windows and a roof light — On the evidence before him the
inspector was entitled to make a finding of fact that the building was not
designed for agricultural purposes
The following
cases are referred to in this report.
Belmont
Farm Ltd v Minister of Housing and Local
Government (1962) 60 LGR 319; 13 P&CR 417; [1963] JPL 256, DC
Harding
v Secretary of State for the Environment and
Bridgenorth District Council [1984] JPL 503
This was an
appeal by the first respondent, the Secretary of State for the Environment,
against the decision of Mr Malcolm Spence QC (sitting as a deputy judge of the
Queen’s Bench Division) on July 5 1991, whereby he allowed an appeal by the
applicant, Mr Clarke, from a decision of the inspector dismissing his appeal
against an enforcement notice dated April 9 1990 issued by the second
respondents, Melton Borough Council.
Duncan Ouseley
QC (instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment; Anthony Smith QC and Nadia Sharif
(instructed by Marron Dodds & Waite, of Leicester) represented the first
respondent, Mr D P Clarke; the second respondents, Melton Borough Council, did
not appear and were not represented.
Giving the
first judgment at the invitation of Fox LJ, GLIDEWELL LJ said: Mr Clarke, the
respondent to this appeal, is the owner of some 40ha of farmland, lying south
of the village of Long Clawson in the Vale of Belvoir, Leicestershire, which he
bought in 1988. On part of the land he erected, late in 1989 or early in 1990,
a building called in these proceedings ‘the barn’.
On April 9
1990, Melton Borough Council, the local planning authority in whose area the
building lies, served on Mr Clarke an enforcement notice alleging a breach of
planning control, namely the erection of the building without the benefit of
planning permission. The notice required Mr Clarke to ‘remove the unauthorised
building from the site and return the land to agricultural use’. The period for
compliance was two months.
Mr Clarke
appealed against the enforcement notice on the following grounds then contained
in section 174(2) of the Town and Country Planning Act 1990 — before that
section was amended by the Planning and Compensation Act 1991:
(a) planning permission
ought to be granted;
(b) the matters alleged did
not constitute a breach of planning control;
(c) (was a ground originally
contained with the grounds of appeal but not pursued at the inquiry);
(g) the steps required
exceeded what was necessary; and
(h) the specified period was
unreasonably short.
An inspector
of the Department of the Environment, Mr E K Seymour, was appointed to
determine the appeal. He held an inquiry on October 30 and 31 1990. By a
decision letter dated November 28 1990, he slightly altered the wording of the
enforcement notice, reduced the area of land to which it applied, extended the
time for compliance to six months, but otherwise dismissed the appeal.
Mr Clarke then
appealed to the High Court under section 289 of the 1990 Act against the
inspector’s decision. The appeal was heard by Mr Malcolm Spence QC, sitting as
a deputy High Court judge, on July 5 1991*. In his judgment, Mr Spence allowed
Mr Clarke’s appeal.
*Editor’s
note: Reported at [1992] 1 PLR 22.
The issue
before the judge and before this court is that raised under ground (b), namely
whether the construction of the building was development permitted by article 3
and Schedule 2, Part 6, Class A to the Town and Country Planning General
Development Order 1988 (SI 1988 No 1813). The judge expressed the view that the
development was so permitted and remitted the matter to the Secretary of State
for the Environment for rehearing and determination by him in the light of that
opinion. The Secretary of State now appeals to this court with the leave of the
judge.
Article 3(1)
of the General Development Order provides:
3.– (1) Subject to the provisions of this order,
planning permission is hereby granted for the classes of development described
as permitted development in Schedule 2.
Part 6 of
Schedule 2 provides, so far as is relevant† :
† Editor’s
note: GDO Schedule 2, Part 6, Class A: The wording has been slightly changed in
the new Part 6, substituted with effect from January 2 1992 by the Town and
Country Planning General Development (Amendment) (No 3) Order 1991 (SI 1991 No
2805), but the substance remains the same.
Permitted
development
A. The
carrying out on agricultural land comprised in an agricultural unit of —
(a) works for the erection, extension or
alteration of a building . . . reasonably necessary for the purposes of
agriculture within that unit.
Then:
Development
not permitted
A.1.
Development is not permitted by Class A if —
. . .
(a) the development would be carried out on
agricultural land less than 0.4 hectare in area;
(c) . . . a building, . . . not designed for the
purposes of agriculture would be provided on the land;
It is
necessary to refer to substantial parts of the decision letter of November 28
1990. In para 6 the inspector described the building as follows:
6. The appeal
building has ground dimensions of some 10.3 by 13.3 metres. It stands about 3.5
metres to the eaves, and a little over 7 metres to the ridge. It is built in
brick, and has a tiled roof. It has gabled ends, each of which is furnished
with a door about 2.4 metres wide and 2.8 metres high. In one gable is a
honey-comb brickwork panel. In the other is an upper doorway with a hoist to
the loft. The latter is also served by stairs and a large trap. The ground
floor has a concrete floor, with a lowered section from door to door. There is
an inner wall of block-work, with a cavity between it and the brickwork. Seven
windows have been bricked up in the outer leaf only. The remaining lights to
the building comprise a small roof panel, a window to a partitioned-off tool
store, and a smaller window to the stairway. The main part of the ground floor
was very largely filled at the time of my inspection with vehicles including
two small tractors, two small trailers, a four-wheel drive vehicle, a car, a
small dumper and chain harrows.
7. The appeal
site also contains a small old building of brick with a clay tile roof, which I
understand the appellant has renovated. It is furnished with windows to three
sides, and plain double doors some 2 metres wide. The interior is divided into
a number of compartments. One had fitted cupboards, another had modern kitchen
fittings, one had a hand basin. It was very largely empty at the time of my
visit apart from a little horse tack.
Then in para
9:
9. You have
explained that the appellant bought the appeal site in 1988, with the intention
of establishing an equestrian centre. He was a keen rider and still kept two
horses in the village, where he had rented a house. The equestrian centre would
have taken up only a small part of the land, and it had always been the
intention that the rest would be farmed. However, the appellant had had no
experience as a farmer, and had initially let the grazing rights for the
remainder under an agreement which has only just lapsed. A Council decision to
refuse permission for the equestrian centre and accompanying dwelling was
confirmed on appeal under reference T/APP/Y2430/A/89/119843/P5 in November
1989. The appellant, recognising the possibility of an adverse decision, had
already begun to turn his attention to developing a sheep unit as an
alternative, and designed the appeal building in the latter part of 1989 with
that in mind.
In para 10 the
inspector recorded the submission made on Mr Clarke’s behalf that the building
was erected as permitted development. At the end of that paragraph the
inspector said:
. . . There is
no dispute that a building involving development has been erected in this case.
The Council concede that the site comprises an agricultural unit of over 0.4
hectares.
11. The main
matters in dispute, in deciding whether the building was to be classed as
permitted development, were whether a trade or business was involved, whether
the building was reasonably necessary and whether it was designed for the
purposes of agriculture.
12. On the
matter of trade and business use, there is no doubt that there have been, and
are, substantial numbers of sheep on the appeal site. The Council make the
point that it is difficult to establish their ownership, but I am reasonably
satisfied that the appellant has begun to engage in the keeping and trading of
sheep on a substantial scale notwithstanding that (at least by the conventional
methods of assessment adopted in planning cases) such use is uneconomic. I am
reasonably satisfied that he was engaged in an agricultural trade or business
when the building was erected.
13. I have
not found it possible to make a neat separation between the two remaining
matters of main concern, necessity and design. I do appreciate, however, that
there are distinctions to be made between the way in which the two aspects are
treated. Notably, when design is being considered, appearance rather than
function should be kept primarily in mind, in the light of the legal cases and
previous decisions to which you referred (especially Belmont Farm Ltd v Minister
of Housing and Local Government . . . and Harding v Secretary of
State for the Environment*) . . .
14.
‘Reasonably necessary’ for the purposes of the GDO is qualified by the
expression ‘for the purposes of agriculture within that unit’. An agricultural
enterprise must be in existence when a building is erected if permitted
development rights are to apply, but I accept that buildings are commonly
erected as a precursor to the build-up of stock numbers, not as a result of
such change. I accordingly attach no great significance to precise stock
numbers which the appellant held when this building was erected.
15. However,
I am not satisfied that a building of this size would be reasonably necessary
for a sheep unit of this size. I conclude on the basis of the Council’s
evidence that a sheep farmer who could house all the vehicles and equipment
under cover would count himself singularly fortunate; many do not, and it is
not necessary to do so. Even if everything was to be kept under cover a simple
open-fronted building would suffice. A lockable store might well be needed for
small tools and other portable and valuable or dangerous items, but another
building exists on the appeal site which could easily be used for this purpose.
16. Further,
the appeal building must be relatively inconvenient to use as an agricultural store.
Its means of access and egress are such that one vehicle or item of equipment
will have to be moved to get at another. It will not be possible to utilise
standard equipment such as a tractor and attachments to load feed in and out of
the loft, as would be the case with a single storey open-fronted building. This
would not make a good stock building, and there has been no suggestion that it
was erected as such. In any event a stock building would not be permitted
development in this position within 400 metres of Old Mill House.
17. I can
accept that with no previous experience of farming the appellant did not really
know how to go about designing a building needed for a sheep unit. I do not,
however, give appreciable weight to your point that if it was not efficiently
designed for agriculture, the appellant still had agricultural use in mind when
he designed it. Applying practical tests, as you enjoined me to do, I cannot
conclude that the building has been designed in a manner reasonably necessary
for this sheep unit. I can accept that the appellant, who is an architect, may
well have wanted any building which he erected in this sensitive location to be
sympathetic to the local vernacular. However, I do not accept that the building
needed to be enclosed entirely by cavity walling with an outer leaf of brick,
containing nine windows with metal frames and safety glass, and eight roof
lights. In any event the proportions of the building do not generally accord
with those which I saw in the village, and the windows and roof lights (now for
the most part removed I appreciate) made little concession to the local
vernacular. You have asked me to accept that the GDO does not so much require
that a building must be designed for the purposes of agriculture as that it
should not obviously be designed other than for such purpose; this point does
not however affect my main conclusions.
18. I
accordingly conclude that the building was not reasonably necessary for the
purposes of agriculture within this unit, or designed for the purposes of
agriculture, having regard to the precise meanings which I believe should be
given to those terms in this context. I should explain, because of the
attention given to the matters at the Inquiry, my attitude to viability, cost
and the appellant’s intentions.
*Editor’s
note: Reported respectively at (1962) 13 P&CR 417 and [1984] JPL 503.
He then
proceeded to do so.
In para 19 the
inspector said he could not ignore the point that the council made that in
effect the appellant was trying to circumvent the planning legislation by
constructing a stable for an equestrian centre without planning permission, but
he continued:
. . . I
consider that it is mistaken to say that the appellant is circumventing
planning legislation or abusing the planning system; at most he seeks to use it
to his best advantage. I have not found it necessary to make any assumptions
regarding his intentions on the ground (b) appeal . . .
20. The
appeal on ground (b) fails.
The inspector
then considered the appeal on ground (a) and said that planning permission
should not be granted, so that ground failed. He also altered the wording of
the requirement slightly, as I have already said, but otherwise dismissed the
appeal and on grounds (g) and (h) he extended the time for compliance but on
major issues the appeal failed.
An appeal to
the High Court under section 289 lies on a point of law only. The inspector is
the person responsible for finding facts, but before dealing with the substance
of this appeal, it is right I should say a word as to the evidence filed with
the notice of motion containing the appeal to the High Court.
The inspector,
in his decision letter, has summarised the evidence and the submissions and has
found facts and reached conclusions. On an appeal to the High Court, the court
should not itself receive evidence unless it is argued that the inspector has
not properly summarised, or has disregarded, some material evidence. That is
not suggested in this case.
The proof of
evidence of Mr Queally, an architect and a member of the Royal Institute of
British Architects, who gave evidence for Mr Clarke at the inquiry, was
appended to the appeal papers for the reasons set out in an affidavit sworn by
Mr John Edmond, the appellant’s solicitor. In para 3 Mr Edmond said:
I produce the
bundle marked ‘JTSEI’ to assist the Court in understanding the decision letter
and to show that the issues raised in the Notice of Motion were material
factors raised by the applicant. I also confirm that those issues the treatment
of which is complained of formed an important part of the applicant’s case.
I do not
consider it was necessary to append Mr Queally’s proof of evidence; if it were
necessary to set it out at all, other than by way of submission to the court,
Mr Edmond could have deposed to it in a paragraph of his affidavit — indeed, he
did so. In my view, the evidence should not have been filed, nor should it have
been accepted. It has led in this case — in part at least — to the judge making
a finding which I consider should not have been made.
The judge
concluded first, in effect, that the inspector made an error of law by holding
that the building was not ‘reasonably necessary’ for the sheep unit, whereas he
should have considered whether it was ‘reasonably necessary’ for the purposes
of agriculture within the unit, by which the judge said he meant ‘general
agricultural purposes’. Second, the judge held that some of the inspector’s
findings of fact in relation to the ‘reasonably necessary’ test were absurd
and, in relation to the design for the ‘purposes of agriculture’ test, were
perverse. Clearly, if those conclusions were correct, the inspector did err in
law. The task of this court is to decide whether those conclusions were
correct.
I turn to
consider the first of those matters. In my view — and indeed I think counsel
before us were agreed as to this — the proper test is: is this building
‘reasonably necessary’ for, and if so is it designed for, the purposes of the
agricultural activities which might reasonably be conducted on this unit? The inspector did not put the matter in those
terms, but in paras 14 and 18 of his decision letter, in effect, he quoted the
wording of the General Development Order and thus, in my view, he posed the
correct test.
Mr Smith QC,
for Mr Clarke, argued that the first question to be asked was not is this
building necessary, but is a building necessary? I can see that this is part of the process of
asking whether this building is reasonably necessary, but nevertheless,
in my view, the question as I have sought to formulate it is the correct
question. The test of reasonable necessity must be related to the building
which is the subject of the alleged permission within the General Development Order.
The next issue
is, did the inspector (as the judge concluded) restrict himself to considering
whether the building was reasonably necessary for, and was designed for, a
sheep unit alone; not for such other agricultural use as this unit of
land might be put to?
In my view,
the inspector’s letter should not be so read. It is commonplace that decision
letters on planning appeals are not to be construed as if they were statutes.
The inspector concentrated on the sheep unit because that was the activity in which
Mr Clarke was engaged. It was not suggested to the inspector that Mr Clarke
intended to engage in any other agricultural activity. I accept that, even so,
the inspector should and could properly have considered other forms of
agriculture which obviously could be conducted on the land — for instance,
grazing cattle. But it is not suggested that the reasonable necessity for, and
the design criteria for, a building for such a purpose would differ from that
required for a sheep unit. But Mr Ouseley QC submits, and I agree, that the
inspector was not obliged to cast about to contemplate some possible but
unlikely agricultural activity on the land which had not been suggested by or
on behalf of Mr Clarke.
Therefore I
differ from the judge; I conclude that it is not apparent from the decision
letter that the inspector erred in law by restricting himself to consideration
only of a sheep unit.
Next it is
convenient to consider the inspector’s finding of fact that the building was
not designed for the purposes of agriculture. The judge dealt with this in his
judgment ([1992] 1 PLR 22 at pp 28F-29A):
Furthermore,
I hold that his [the inspector’s] finding that it was not designed for
agricultural purposes was perverse. I refer to para 6 of the decision letter,
where the building is described and in particular the building contains, as the
inspector says, ‘an upper doorway with a hoist to the loft. The latter is also
served by stairs and a large trap. The ground floor has a concrete floor, with
a lowered section from door to door’. The inspector saw that the main part of
the ground floor was very largely filled at the time of his inspection with
vehicles and he says what they were. They included tractors, trailers and chain
harrows, plainly all used for agricultural purposes on the agricultural unit.
This paragraph does not contain all the features described by the appellants in
evidence but, nevertheless, every point is consistent with use for agriculture
except maybe the cavity walls, which were, as I have said, protection against
damp, and except maybe for the windows, but as I said it is perfectly
legitimate, especially if the building is to be used for repair of vehicles
(that is vehicles used on the farm), to have light in the building. As I have
said, the building was in fact being used for agricultural purposes at the time
of the inquiry, namely the purpose for which it had been designed.
The judge then
went on to consider the decision in Harding v Secretary of State for
the Environment [1984] JPL 503, a decision of Mr David Widdicombe QC,
sitting as a deputy judge of the High Court.
The proper
test as to whether a building is designed for the purposes of agriculture has
long been held to be that set out in the judgment of Lord Parker CJ, in Belmont
Farm Ltd v Minister of Housing and Local Government (1962) 13
P&CR 417 at p 424:
The third
prerequisite, however, is that the proposal does not involve the placing on the
land of a structure not designed for the purposes of agriculture. There are
three views, as it seems to me, as to what the word ‘designed’ there means. The
appellants, through Mr Hawser to whom the court is indebted for his argument,
say that ‘designed’ there really means no more than ‘intended for’, in other
words, that when the structure is placed on the land it must be intended for
the purposes of agriculture. The other extreme view is that it all depends upon
the original design of the architect who designed it or the manufacturer who
made it, and it depends upon what he intended it for. The third and intermediate
view, and the one which I think is right, is that you look at the structure at
the time of its erection and ask: Is this designed for the purposes of
agriculture in the sense of its physical appearance and layout?
Winn and Brabin
JJ agreed.
That test was
referred to by the inspector in the passage I have already read.
The inspector
referred to three features of the building which were relevant to his decision
that the building was not designed for the purposes of agriculture. They were:
the inconvenience of the doorway as an access and egress for machinery; the
cavity walls and the fact that originally there had been nine windows and a
roof light.
In reference
to the cavity walls, in the passage I have read the judge said that they were
‘. . . as I have said protection against damp’. That refers back to what the
judge said earlier in his judgment [1992] 1 PLR 22 at p 28A:
. . . Mr
Ouseley also prayed in aid for consideration under this limb certain words in
para 17 relating to the cavity walls and the windows, although, as I have said,
the reason for the utilisation of cavity walls was explained to the inspector
as being no more expensive and better because it would provide protection
against damp . . .
That, in turn,
came from para 4.3.4 of the proof of evidence which the judge had in front of
him. So the exercise he was carrying out was, at p 28A, finding an explanation
for the cavity walls and then, at p 28H, turning that into a finding of fact
that that was in fact the reason for the cavity walls.
In my view,
the judge was not entitled to make such a finding of fact. The inspector had
not found that; he found that the cavity walls were not necessary for the
purpose of a building for agricultural use in connection with this holding. As
I have already said, the evidence was put before the judge for another purpose
and the judge was not entitled to use that evidence to describe the inspector’s
conclusion as ‘perverse’.
As to the
windows, the judge’s finding of fact that they were needed to enable work to be
carried out on the vehicles inside the barn would appear not to be based on any
evidence at all — certainly, it is not referred to by the inspector in his
decision.
I therefore
conclude that the judge was not justified in describing the inspector’s finding
that the building was not designed for agricultural purposes as perverse. On
the contrary, in my view, this was a finding of fact which, on the evidence
before him, the inspector was entitled to make.
In order to
succeed in his challenge to the inspector’s decision, Mr Smith, on behalf of Mr
Clarke, was obliged to succeed on both issues — ‘reasonable necessity’ and
‘designed for the purposes of agriculture’. In the light of the conclusion I
have just expressed in relation to design, he must fail on this issue, and that
is sufficient to decide this appeal.
Therefore, I
need not consider the judge’s other conclusion that some of the inspector’s
findings were absurd. I say no more than this; though I would not myself
characterise the inspector’s views as absurd, I see the force of the argument
that in saying that ‘a sheep farmer who could house all vehicles and equipment
under cover would count himself singularly fortunate’ and ‘a simple
open-fronted building would suffice’ the inspector seemed to be asking himself
‘is this building absolutely necessary?’ not ‘is it reasonably necessary?’.
However, in the light of the conclusion to which I have come on the earlier
matter, it is not necessary for me to express a concluded view on this issue.
For the reasons
I have sought to express, I would allow the appeal and set aside the judge’s
order remitting the matter with his opinion to the Secretary of State.
FOX LJ and BOREHAM J agreed and did not add anything.
Appeal
allowed with costs.