Agricultural building — General permitted development order — Enforcement notice — Whether building needed for agriculture — Inspector upholding notice — Judge on appeal concluding conditional permission appropriate — Whether judge entitled to find inspector’s reasoning inadequate in failing to consider modifications — Appeal dismissed
The respondent erected a building on its agricultural holding under Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. Class A permitted certain forms of development that were “reasonably necessary for the purposes of agriculture” within an agricultural unit of at least 5 ha. The building, which had a floor area of 460 sq m, was a rectangular steel-framed structure, which was clad to a height of 2 m in concrete blocks, with timber boarding above; the roof was constructed of corrugated metal. Adjacent to the building was an area of hardstanding that was a similar size to that of the building.
Before beginning the work, the respondent applied to the second appellant local authority for a determination as to whether their prior approval was required in respect of the siting, design, external appearance or various other matters under Class A. No notice of determination was received within 28 days and, the respondent therefore started work, as it was entitled to do under Class A.2(2)(iii)(cc).
A notice by the second appellants requiring further details had been sent to the wrong address. However, in a letter sent during the course of the works, the enforcement officer confirmed that the site had been visited and that the building was within the dimensions allowed by Class A. He did though question whether it was reasonably needed for agriculture within the unit or had been designed for agricultural purposes, as required by Class A.
The building had been largely completed when the second appellants issued an enforcement notice alleging that the building had been erected and the hardstanding had been constructed without permission, and requiring their removal and the restoration of the site to its original condition.
A planning inspector appointed by the first appellant upheld the notice, but the High Court allowed the respondent’s appeal and quashed the notice, remitting the case to the first appellant for reconsideration. The judge concluded that the proper course would have been to grant conditional permission for a modified building. The appellants appealed.
Held: The appeal was dismissed.
The inspector’s reasoning was inadequate in that he had failed to consider whether the building would have been acceptable with appropriate modifications.
Having identified a breach of planning control requiring a remedy, the inspector’s task was to decide what was the appropriate solution. That required him to consider, not what would be necessary to make the building compliant with Class A, but whether the building could be modified to make it acceptable in terms of both planning policy and amenity, supported if necessary by planning conditions: Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P&CR 417 and Clarke v Secretary of State for the Environment [1992] 2 EGLR 189; [1992] 42 EG 100 considered.
Although it was not the inspector’s duty to make an appellant’s case for it, the inspector had to bear in mind that the enforcement procedure was intended to be remedial rather than punitive. If, on consideration of the arguments and in the light of a site view, there appeared to be an obvious alternative that would overcome the planning difficulties, the inspector should consider it. Fairness might require him to give the parties the opportunity to comment on it and the Planning Inspectorate should have an established practice for dealing with such a situation efficiently and expeditously: Dyason v Secretary of State for the Environment [1998] 2 PLR 54 and Taylor & Sons (Farms) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1254 considered.
Lisa Busch (instructed by the Treasury Solicitor) appeared for the first appellant; Robert Fookes (instructed by Jones Day) appeared for the respondent; the second appellant did not appear and were not represented.
Eileen O’Grady, barrister
