Development — Agricultural purposes — Construction of outbuilding — Demolition and replacement of wall — Council requiring removal of building and lowering of wall –Whether structures within scope of permitted development Appeal dismissed
The appellant was the lessee of a holding that was in a state of disrepair. In the course of carrying out improvement works, the appellant decided to install an electricity generator in an outbuilding adjacent to the boundary of the holding for the purpose of providing emergency power. The second respondent council, as local planning authority, issued an enforcement notice requiring the removal of the outbuilding.
An unnamed lane, which was also a public footpath, was separated from the holding by a retaining wall, which had fallen into disrepair. The lane was used by vehicular traffic for the sole purpose of gaining access to a Grade II listed building adjoining the holding. The appellant demolished and replaced the wall, but the replacement wall was said to be too high and the second respondents issued a further enforcement notice requiring it to be replaced by a lower one.
The appellant contended that she was entitled to construct the outbuilding and the wall by virtue of the General Permitted Development Order 1995 (GPDO); Alternatively, planning permission should be granted for both. An inspector appointed by the first respondent rejected both grounds and upheld the enforcement notices. The appellant appealed under section 289 of the Town and Country Planning Act 1990. Permitted development was set out in Schedule 2 to the GPDO, but Class A excluded development involving the construction of a building not designed for agricultural purposes. Paragraph A.1(a) in Part 2 of Schedule 2 restricted the height of any wall to be constructed adjacent to a highway used by vehicular traffic to 1m above ground level.
The issues on appeal were whether: (i) the outbuilding was designed for agricultural purposes; (ii) the lane was a highway used by vehicular traffic within the meaning of para A.1(a); and (iii) the ground level of the wall should be measured from the highest part of the surface of the ground adjacent to it, as set out in within article 1(3) of the GPDO.
Held: The appeal was dismissed.
(1) The question was whether, at the time the development commenced, there was an agricultural use. That was essentially a question of fact. On the evidence, the inspector was entitled to conclude that the construction of the outbuilding failed to conform to the requirements and conditions in Schedule 2. Moreover, he had reached an unimpeachable planning judgment that the development was incompatible with policy for development in the green belt and that it would be detrimental to the listed building: Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P&CR 417 considered.
(2) The inspector was entitled to conclude that para A.1(a) meant no more than that the highway was one that was in fact used by vehicular traffic. The height restriction was imposed for safety reasons. The GPDO avoided the need for planning permission and subject to there being very little vehicular traffic and no other planning objections, a wall of greater height might be permitted.
(3) The inspector was correct in his approach to the height of the wall. Article 1(3) did not apply to a wall, which was excluded from the general definition of a building by article 1(2). A retaining wall had to be measured from its footing, where the ground level was to be found. The original wall had clearly been measured from the lane side and the height was dictated by the ground level of the highway.
Philip Coppel (instructed by Ashfords) appeared for the appellant; Andrew Sharland (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents, South Gloucestershire Dictrict Council, did not appear and were not represented
Eileen O’Grady, barrister
