Appellant laying down hard surface on path – Enforcement notice – Inspector dismissing appeal against notice – Town and Country Planning (Permitted Development Order) 1995 – Whether works permitted development as “maintenance or improvement” – Appeal allowed
Peak District National Park Authority, the second respondents, issued an enforcement notice against the appellant, alleging that he had put down a hard surface on a path within their area. The notice required the taking up of the track within three months, the removal of the materials used in its construction within six months and the restoration of the land, using soil and seed where necessary. The appellant appealed against the notice, arguing that the creation of the track was permitted development by Part VI or IX (Class A) of Schedule 2 to the Town and Country Planning (Permitted Development Order) 1995 (SI 1995 No 418) (the GDPO). Part VI permitted the development of agricultural land, which was 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 required notification of the proposed works for determination of whether approval would be required. Part IX permitted “the carrying out on land within the boundaries of a … private way of works required for the maintenance or improvement of the … way”. Dismissing the appeal, the inspector found that the works amounted to an “alteration of a private way”, but that since no notice of the alteration had been given, it did not amount to permitted development under Part VI. The inspector interpreted “improvement” in Part IX by reference to “formation and alteration” in Part VI. On that basis, he concluded that the works carried out were an “alteration” within Part VI and accordingly were not an “improvement” within Part IX, since the works were not superficial but involved the alteration of a right of way. The Divisional Court refused the appellant’s application for judicial review of the inspector’s decision. The appellant appealed.
Held: The appeal was allowed.
The issue of whether the construction of the hard surface was an “improvement” within Part IX was essentially a matter of fact and degree for the experienced judgment of the relevant inspector, who had to ask himself whether the works were required for the improvement of the right of way. The provision of Part VI relating to “alteration” did not bear on the meaning or scope of the provisions relating to an “improvement” in Part IX and it was not permissible for the inspector to rely on them in reaching his decision on the application of Part IX. The inspector had misdirected himself in law in concluding that, as the works amounted to an “alteration” of the way in relation to Part VI, they were not works required for the “improvement” of the way. Accordingly, the matter of whether the works fell within Part IX was to be remitted for reconsideration. They would not do so, notwithstanding that improvement might well involve alteration, if the alteration were such as to change the character of the way.
Stephen Sauvain QC (instructed by Dibb Lupton, of Manchester) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State.
