Applicant laying down hard surface on path – Enforcement notice – Inspector dismissing appeal against notice – Town and Country Planning (Permitted Development Order) 1995 – Whether works prima facie permitted development – Whether works permitted development as “maintenance or improvement” – Appeal dismissed
Peak District National Park Authority, the second respondent, issued an enforcement notice against the applicant alleging that the applicant had put down a hard surface on a path within its area. The notice required the applicant to take up the track within three months, to remove the materials used in its construction within six months and to restore the land using soil and seed where necessary. The applicant appealed arguing that the creation of the track was permitted development by Part 6 or 9 of Schedule 2 to the Town and Country Planning (Permitted Development Order) 1995 (the GDPO).
Part 6 permitted development of agricultural land by engineering operations which were reasonably necessary for the purposes of agriculture, but subject to the condition imposed by para 2(2) in respect of development comprising the “formation or alteration of a private way” which, inter alia, required notification of the proposed works for determination whether approval would be required. Part 9 permitted “the carrying out on land within the boundaries of a . . . private way of works required for the maintenance or improvement of the . . . way”. The inspector, dismissing the appeal, found, inter alia, that there was a pre-existing track which amounted to a “private way” within Part 6, and that the works amounted to an “alteration”, but that since no notice of the alteration had been given it did not amount to permitted development. The inspector further found that the works were not permitted by virtue of Part 9 since the works were neither “maintenance or improvement”. The applicant appealed.
Held The appeal was dismissed.
1. Although the inspector had found that the works would have been permitted development by virtue of Part 6 of the GPDO if the condition had been complied with, that did not mean it was prima facie permitted development subject only to the breach of condition. Therefore the inspector had been entitled to conclude that the failure to comply with the conditions in the GPDO meant that the development constituted a breach of planning control: see Daniel Platt Ltd v Secretary of State for the Environment [1997] 1 PLR 73.
2. The inspector had been entitled to conclude that since the works “were a discrete and separate construction including excavation and the laying of a sub-base and top surface using imported materials” the works could not be classified as “maintenance” within Part 9. His reasons for that conclusion were clear, fully explained, logical and self-contained.
3. The word “improvement” in Part 9 fell into the category of words which were “inherently imprecise”, and therefore the proper approach was to give the word its ordinary and natural meaning as a matter of fact and degree within the context in which the word was used. The inspector had not gone beyond a reasonable application of the word and therefore it was not appropriate for the court to interfere with his decision. He had been entitled to conclude that the works amounted to an alteration rather than an improvement.
Ruth Stock (instructed by Dibb Lupton Alsop, of Manchester) appeared for the applicant; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
