Enforcement notices — Town and Country Planning (General Permitted Development) Order 1995 — Whether works carried out to farm track constituted ‘improvement’ for the purposes of Class A, Part 9 of the 1995 order — Whether breach of planning control
The appellant owner
of agricultural land carried out some works to a rutted farm track passing
through fields. The works included the creation of a hard surface on the track,
resulting in an all-weather surface. In May 1996 the then local planning
authority issued three enforcement notices alleging breach of planning control
in respect of works carried out to the farm track without planning permission.
In August 1997 the Secretary of State, by his inspector, dismissed the
appellant’s appeals against the enforcement notices contending, inter alia,
that the creation of a hard‑surface track was not an ‘improvement’
permitted by the Town and Country Planning (General Permitted Development)
Order 1995, but an ‘alteration’ not permitted by Part 9. The appellant’s appeal
against that decision was dismissed. The appellant appealed, contending that
the deputy judge had misdirected himself as to the meaning of ‘improvement’ in
Class A, Part 9 of the 1995 order.
aside for remission.
Whether the
construction of the hard surface was an ‘improvement’ in the context of a
development deemed to be permitted by the 1995 order is not a matter for the
subjective opinion of the person who constructed the hard surface or those who
use the track. It is not primarily a matter for the reasoned and impartial
opinion of a High Court judge or judges in the Court of Appeal. In the scheme
of the 1995 order, it is essentially a matter of fact and degree for the
experienced judgment of the inspector who holds the public local inquiry and
conducts an inspection of the land affected: see p114D. The inspector was wrong
to use the Part 6 concept of alterations in order to determine the meaning of
improvements in Part 9: see p115A. There is no overriding policy or planning
objective that justifies giving the words of Part 9 a narrower meaning than
they ordinarily bear: see p116E‑F. There is no clear basis on which
‘improvements’ can be distinguished from ‘alterations’ as a matter of ordinary
language. Any improvement implies a degree of alteration, and alterations may
or may not be regarded as improvements, depending on the aesthetic or other
values of the observer. Unless Part 9 falls to be interpreted by reference to
Part 6, which it does not, there is no justification for interpreting
‘improvements’ so as to exclude alterations from the scope of Part 9: see
p116G-H
the judgments
English Clays
Lovering Pochin & Co Ltd v Plymouth
Corporation [1973] 1 WLR 1346; [1973] 2 All ER 730; (1973) 71 LGR 412;
[1974] 1 WLR 742; [1974] 2 All ER 239; (1974) 72 LGR 413, CA
Shepherd v Secretary of State for the Environment, Transport and the
Regions (1997) 76 P&CR 74
Appeal against the
decision of Mr Nigel Macleod QC
This was an appeal
brought by Eric David Cowen against an order of Mr
sitting as a deputy judge of the Queen’s Bench Division, on 12
1998 dismissing his appeal against the Secretary of State for the Environment,
Transport and the Regions, who, by his inspector, upheld three enforcement
notices issued by the predecessor to the Peak District National Park Authority.
(instructed by Dibb Lupton Alsop, of Manchester) appeared for the appellant,
Eric David Cowen.
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State for the Environment, Transport and the Regions.
judgments were delivered.
MUMMERY LJ: This is an appeal against an order of Mr Nigel Macleod QC, sitting
as a deputy High Court judge of the Queen’s Bench Division. On 12 February 1998
he dismissed an appeal by Mr Eric Cowen against a decision dated 13 August 1997
by an inspector, Mr Paul V Morris, after a public local inquiry. The inspector
was appointed by the Secretary of State for the Environment to determine
appeals by Mr Cowen against three enforcement notices issued by the
predecessors to Peak District National Park Authority concerning land adjacent
to Reed Bridge, Macclesfield Road, Kettleshulme, Cheshire.
Mr Cowen appeals on
the ground that the deputy judge erred in law in failing to quash the decision
of the inspector in that he misdirected himself in law as to the meaning of
‘improvement’ in Class A, Part 9 of the Town and Country Planning (General
Permitted Development) Order 1995 (SI
granted by this court on a renewed application on 1 July 1998.
Background facts
The relevant facts
may be summarised as follows:
1. Mr Cowen is the
owner of agricultural land at Kettleshulme. There is access to it from the road
at Reed Bridge by means of a farm track, which is a ‘private way’ within the
meaning of the relevant provisions of the 1995 order.
2. There was
originally a rutted farm track passing through the fields. It has been used for
many years to gain access to the road at Reed Bridge from the property of a Mr
Mellors at Summer Close, from two wooden bungalows in fields near Charles Head
Farm and from a refuse tip on Mr Cowen’s property.
3. In the early 1980s
Mr Cowen laid some stone along the ruts of the track. It was not suggested that
this was affected by any planning considerations. Mr Cowen later carried out
works on the track, which led to the issue of an enforcement notice on 15 May
1996. A breach of planning control was alleged in the following terms:
Without planning
permission, the creation of a hard surface track and the associated storage of
materials to be used in the creation of the track.
The notice required
Mr Cowen to take up the track and remove the materials used in its construction
and materials stored ready for use in its construction from the land. A
three-month period was given for compliance.
4. The inspector
found that Mr Cowen had put a hard surface on the road in the form of ‘a rubble
sub-base and crushed stone dressing’, and that this had been done for ‘a
significant distance’ into Mr Cowen’s land.
Decision of the
inspector
The inspector came to
the following conclusions set out in his decision letter of 13 August 1997:
1. The hard surface
was a significant change in the physical character of the rutted track through
the fields that was present before.
2. The works of
construction of the hard-surface track fell within the definition of an ‘alteration’
to the private way.
3. It was not
possible to classify the works as ‘maintenance’ within the meaning of the 1995
order because:
21 The works which
you have undertaken to make the hard surface track were a discrete and separate
construction including excavation and the laying of a sub-base and top surface
using imported materials with no reliance on material already in the ground.
4. It was not
possible to regard the creation of the hard-surfaced track as an ‘improvement’
permitted by the 1995 order.
22. The question of
whether the works constituted improvement is more difficult to determine. If
improvement is taken to include fundamental construction, then presumably a
reference to improvement would have been made in Part 6 Class A2(2)(b) as
applied to operations involving a way within an agricultural unit. In other
words, because Part 9 does not involve notification procedures to the Planning
Authority, it is reasonable to conclude, in my view, that improvements should
mean a type of works which are by nature superficial as they do not involve the
formation or alteration of a way. There is no doubt that the hard surfaced
track is an improvement of the way in that it has resulted in an all-weather
surface for the benefit of the farm. Taken as a whole, however, the works, as I
found in relation to the Part 6 claim, amounted to an alteration of the way
because of the marked change in character from the rutted track through the
fields.
Decision of the
deputy judge
The deputy judge
dismissed the appeal on the ground that the inspector had taken the correct
approach in para 22 of his decision letter and that his decision was:
a valid exercise in
its own right as to how the word ‘improvement’ should be utilised. He
distinguished between what might be regarded as an ‘improvement’ in the simple
concept of the provision of a better surfaced farm road, and what he found
actually happened as a result of the provision of that better surface when
looked at in the circumstances of markedly changing character of the road from
being a rutted track through fields. He was, in my judgment, entitled to
conclude that this went beyond ‘improvement’ into ‘alterations’, and that this
was development that was not permitted by Part 9.
He expressed earlier
in his judgment his view that the word ‘improvement’ was a word that was
‘inherently imprecise’. It seemed to him that:
the proper approach
is to give the words their ordinary and natural meaning as a matter of fact and
degree within the context of which the words are used, and I would not consider
it appropriate for the court to interfere if the decision maker has not gone
beyond a reasonable application of the word. I do not find that the inspector
did go beyond such reasonable application.
The deputy judge then
explained how it was legitimate in the question of construction to consider and
compare the various Parts of Schedule 2 to the 1995 order and, on a comparison
of the provisions of Part 6 and Part 9, to take:
a more restricted
approach to the meaning of words in Part 9, as a Part which does not allow
wider potential for development rights.
The 1995 order
In the 1995 order
‘private way’ is defined in Article 1(2) as meaning:
a highway not
maintainable at the public expense and any other way other than a highway;
Article 3 (Permitted
development), omitting immaterial parts, provides that:
(1) …planning
permission is hereby granted for the classes of development described as
permitted development in Schedule 2.
Any such permission
is:
(2) …subject to any
relevant exception, limitation or condition specified in Schedule 2.
Part 6 of Schedule 2
is concerned with ‘Agricultural Buildings and Operations’. It provides as
follows:
Class A Development on Units of 5 Hectares or More
The carrying out on
agricultural land comprised in an agricultural unit of 5 hectares or more in
area of —
(a) works for the
erection, extension or alteration of a building; or
(b) any excavation
or engineering operations,
which are reasonably
necessary for the purposes of agriculture within that unit.
Conditions A2(1) Development is permitted by Class A
subject to the following conditions —
…(2) Subject to
paragraph (3), development consisting of —
…(b) the formation
or alteration of a private way;…
is permitted by Class
A subject to the following conditions —
(i) the developer
shall, before beginning the development, apply to the local planning authority
for a determination as to whether the prior approval of the authority will be
required to the siting… and means of construction of the private way…
Mr Cowen did not make
any such application to the local planning authority in relation to the siting
and means of construction of the hard‑surface track on his land at Reed
Bridge.
Part 9 of Schedule 2
to the 1995 order is concerned with ‘Repairs to Unadopted Streets and Private
Ways’. It provides:
Class A
A. The carrying out
on land within the boundaries of an unadopted street or private way of works
required for the maintenance or improvement of the street or way.
The words
‘maintenance’ and ‘improvement’ are not defined in the 1995 order.
Mr Cowen does not
contend on this appeal that the creation of the hard surface to the track was
‘maintenance’ within the meaning of Part 9. But he does contend that the
inspector erred in law in rejecting his contention that it was an ‘improvement’
of the way within the meaning of Part 9.
Appellant’s
submissions
The excellent
submissions of Mr Stephen Sauvain QC, on behalf of Mr
summarised as follows:
1. The question is
whether the inspector and the deputy judge adopted the correct approach in law
to the interpretation of Part 9 Class A of the 1995 order. The 1995 order is to
be construed in ‘a broad and commonsense manner’ rather than as an instrument couched
in conveyancing language: English Clays Lovering Pochin & Co Ltd v Plymouth
Corporation [1973] 2 All ER 730 at p735d.
2. The inspector
adopted a restrictive approach. This was demonstrated by the fact that his
initial view was that the hard-surface track was an improvement in the ordinary
meaning of that word: it had resulted in an all-weather surface for the benefit
of the farm. He proceeded to restrict the ordinary meaning by comparing the
word ‘improvement’ in Part 9 of Schedule 2 with the word ‘alteration’ in Part
6. That was a significant step in his reasoning, because he had concluded in
the earlier part of his decision on Part 6 that the works in question did
involve an ‘alteration’ of
expressed the view that the inspector was correct in concluding that works
involving a marked change in the character of the way through the field went
beyond being an ‘improvement’ into being an ‘alteration’.
3. This restriction
of the ordinary meaning of ‘improvement’ in Part 9 by reference to the meaning
of ‘alteration’ in Part 6 was unjustified. ‘Improvement’ is not a defined term
in the 1995 order. It should be given its ordinary and natural meaning. The
ordinary meaning could not be properly restricted by a comparison with Part 6,
because Part 6 and Part 9 deal with very different things.
4. Part 6 deals with
agricultural buildings and operations that are permitted, subject to certain
exceptions and conditions. Mr Cowen did not, and could not, rely on those
provisions, as he had not made an application to the local planning authority
for a determination within the meaning of Class A(2)(i).
5. There was nothing
in Part 6, however, that prevented Mr Cowen from taking advantage of the provisions
in Part 9 concerning private ways. It was accepted that the track was a private
way. Within the limits provided in Class A of Part 9, he was entitled to carry
out works on the private way. He accepted that they had to be works ‘within the
boundaries of the private way’. They were: he had not altered the position of
the way. They had to be works ‘required for’ the improvement of the way. These
works were required for the improvement of the way, and the works were in fact
an improvement within the ordinary meaning of that term. Hard surfacing of a
rutted farm track falls within the ambit of the normal meaning of
‘improvement’.
6. There was no basis
either in the provisions of the 1995 order or in legal principle for
introducing specific limitation on the meaning of ‘improvement’ by reference to
another Part of the 1995 order on which he placed no reliance. Part 9 applies
to private ways whether they are on agricultural land or not. The fact that
there are other provisions that enable works to be carried out on agricultural
land, subject to application for prior approval, does not diminish his rights
under Part 9.
7. The effect of the
approach taken by the inspector and approved by the deputy judge was that the
rights conferred by the 1995 order on Mr
restricted by reference to another part of the order, which was concerned with
development on agricultural land generally and not with the specific context of
improvement of a private way, wherever it was situated.
For those reasons the
decision of the deputy judge should be reversed and the decision of the
inspector remitted to the Secretary of State with the opinion of this court for
rehearing and redetermination by him.
Conclusion
In my judgment, the
decision of the inspector is vitiated by an error of law. I would allow the
appeal. My reasons for this conclusion are as follows:
1. It is not disputed
that the creation of the track amounted to a
development within the meaning of Schedule 2 to the 1995 order.
2. It is not disputed
that the works undertaken amounted to an ‘alteration’ of a ‘private way’, which
required prior notification to the planning authority under Part 6 of Schedule
2 to the 1995 order. That is not, however, the same question as that arising
under Part 9, ie whether the works were required for the ‘improvement’ of the
way. An alteration of a way may or may not involve an improvement of it. An
improvement of a way may or may not involve an alteration of it.
3. In deciding
whether the works to the track were permitted by Part 9 as works required for
the ‘improvement’ of the way, the inspector had to determine the proper scope
of the term ‘improvement’ in the context of the 1995 order. His approach was to
begin by describing the result of the laying of the hard surface as an
‘improvement’ to the rutted track in a general sense. The works converting the
rutted farm track into an all-weather hard-surface way produced for the users
of the track something better than what was there before the works were done.
4. The scope of the
significance or application of the word ‘improvement’ is contextually
conditioned. Whether the construction of the hard surface was an ‘improvement’
in the context of a development deemed to be permitted by the 1995 order is not
a matter for the subjective opinion of the person who constructed the hard
surface or of those who use the track. It is not primarily a matter for the
reasoned and impartial opinion of a High Court judge or of the judges of this
court. In the scheme of the 1995 order it is essentially a matter of fact and
degree for the experienced judgment of the inspector who holds the public local
inquiry and conducts an inspection of the land affected.
5. The inspector
must, however, properly direct himself on the applicable statutory provisions
in Part 9. He must ask himself the correct question: did Mr Cowen carry out
works within the boundaries of the way required for the improvement of the way?
In dealing with this Part 9 question in para 22 of his decision letter, he
relied on Part 6.
6. As indicated in
(2) above, I would accept the contention of Mr
provisions of Part 6 relating to an ‘alteration’ do not bear on the meaning or
scope of the provisions relating to an ‘improvement’ in Part 9, and that it was
not permissible for the inspector to rely on them in reaching his decision on
the application of Part 9. On a reconsideration the inspector may lawfully
conclude, without placing any reliance on the provisions of Part 6, that the
works carried out by Mr Cowen without permission so changed the character of
the track that they went beyond the scope of an ‘improvement’ of a private way
permitted by Part 9. In reaching this decision, however, the inspector
misdirected himself in law in concluding that, as the works amounted to an
‘alteration’ of the way in relation to Part 6, they were not works required for
the ‘improvement’ of the way.
I would allow this
appeal.
SEDLEY LJ: I agree with Evans and Mummery LJJ that the inspector was wrong to
use the Part 6 concept of alterations in order to determine the meaning of
improvements in Part 9. Like them, however, I reject the submission that it was
not open to the inspector to find that the work done to the road fell outside
the category of a Part 9 improvement.
It will now be for
the Secretary of State to decide, without reliance on Part 6, whether the work
falls outside Part 9. It will do so if, notwithstanding that improvement may
well involve alteration, the alteration was such as to change the character of
the way. He will not be constrained by any presumptive description of the
character of the way: this too will be for him to gauge as a planning expert
concerned both with use and with environmental amenity.
From his assessment
of the effect of the work upon the character of the way will come his
conclusion as to whether what has been done is no more than an improvement of
an existing way or whether, by altering its character, it has made the way
something different.
On this footing I too
would allow the appeal.
EVANS LJ: The issue on this appeal is the meaning of ‘improvement’ in Part 9
(Class A) of Schedule 2 to the Town and Country Planning (General Permitted
Development) Order 1995 (SI 1995/418).
The context is
provided by other provisions of the order. The track across Mr Cowen’s land is
a private way within Article 1(2) (‘a highway not maintainable at the public
expense and any other way other (sic) than a highway’). Permitted
developments are listed in Schedule 2. Parts 6 and 9 are relevant to the
appeal. Part 6 relates to ‘Agricultural Buildings and Operations’. Development
consisting of ‘(b) the formation or alteration of a private way’ is permitted,
subject to conditions: para A.2(2)(b). Part 9 applies generally to ‘Repairs to
Unadopted Streets and Private Ways’. It reads :
A. The carrying out
on land within the boundaries of an unadopted street or private way of works
required for the maintenance or improvement of the street or way.
Mr Cowen constructed
a hard surface for what was formerly a rutted track through the fields. The
inspector described it thus:
The surface is
crushed basalt stone and I understand that the sub-base is brick and rubble.
The issue is whether
the creation of a hard surface was an ‘improvement of the… way’ within Part 9.
Mr Cowen does not and
cannot rely on Class A of Part 6, because he failed to comply with the
statutory conditions. He did not give prior notice to the planning authority as
Part 6 requires him to do (Class A2(2)(i)). But the inspector interpreted
‘improvement’ in Part 9 by reference to ‘formation and alteration’ in Part 6.
He held that the works carried out were an ‘alteration’ within Part 6 and that
‘improvement’ in Part 9 means ‘a type of works which are by nature superficial
as they do not
I agree with Mummery
LJ that the inspector was wrong to interpret ‘improvement’ in Part 9 by
reference to ‘alteration’ in Part 6. Mr Timothy Mould, for the respondent, does
not contend that the two are mutually exclusive. Part 9 is of general
application, not limited to agricultural land, which is the subject-matter of
Part 6.
How then is
‘improvement’ in Part 9 to be defined? The inspector recognised that the hard
surface is an ‘improvement of the way’:
There is no doubt
that the hard surfaced track is an improvement of the way in that it has
resulted in an all-weather surface for the benefit of the farm.
I think that here he
was giving the phrase its natural and ordinary meaning, and I agree with him.
Since the order is to be construed in a ‘broad and commonsense manner’ (English
Clays Lovering Pochin & Co Ltd v Plymouth Corporation [1973] 2
All ER 730 at p735, cited by Mummery LJ), the question becomes, why should the
words be given a narrower meaning in Part 9?
I can identify three
reasons why it might be legitimate to interpret Part
first is the literal approach that was adopted by the inspector, interpreting
‘improvement’ in Part 9 by reference to ‘alteration’ in Part 6. I mention this
again because it is closely related to a second, wider ground, which is that
the scheme of the order is that works of a certain magnitude have to be
referred to the planning authority for prior approval under Part 6, and that
Part 9 applies only when the works are not on this scale. This appears to have
been in the inspector’s mind (‘In other words, because Part 9 does not involve
notification procedures to the Planning Authority, it is reasonable to
conclude…’, and it is consistent with what has been said recently in this court
in Shepherd v Secretary of State for the Environment, Transport and
the Regions (1997) 76 P&CR 74. But in my judgment, there is no
overriding policy or planning objective which justifies giving the words of
Part 9 a narrower meaning than they ordinarily bear.
A third reason for
limiting the meaning of ‘improvement’ in Part 9 was also referred to by the
inspector in his decision letter. He found that the works amounted to an
alteration of the way, and were not permitted development ‘because of the
marked change in character from the rutted track through the fields’.
There is no clear
basis on which ‘improvements’ can be distinguished from ‘alterations’ as a
matter of ordinary language. Any improvement implies a degree of alteration,
and alterations may or may not be regarded as improvements, depending on the
aesthetic or other values of the observer. Unless Part 9 falls to be
interpreted by reference to Part 6, which it does not, I can see no
justification for interpreting ‘improvements’ so as to exclude alterations from
the scope of Part 9.
I would agree,
however, that the ordinary meaning of ‘improvements’ is limited to changes that
do not alter the basic character of the thing that is improved. But to apply
this test, it is necessary to establish what the basic character was.
The primary attribute
of the rutted farm track for present purposes was its status as a private way,
for vehicles as well as pedestrians. In this sense, the hard surface was an
improvement of the way, as the inspector found, but it does not follow from
this that its character was changed.
What has changed is
the construction of the way. This was the ‘marked change in character’ to which
the inspector referred. The issue as I see it is whether Part 9 is limited to
improvements that do not alter the surface or method of construction of the
way.
There are indications
in Part 9 itself that the meaning is not so limited. ‘Improvement’ is permitted
as well as ‘maintenance’, and the provision clearly is concerned with the
surface of the way. The physical limitation imposed by ‘within the boundaries
of the street or way’ means that the permitted works can only affect the
surface and foundations of the way. They cannot widen it or alter its route.
There is no indication that the surface or the construction of the existing way
may not be changed. On the contrary, it may be improved as well as maintained.
If the relevant
character of the way is its status as a vehicular way, then the creation of a
hard surface for the way is an improvement without altering its character.
Similarly, a pedestrian right of way could be given an appropriate hard surface
that was suitable for pedestrians, but it could not be converted for use by
vehicles.
As Mummery LJ has
said, the issue of whether there was an ‘improvement’ within Part 9 in the
present case is for the Secretary of State to decide. Since, in my judgment, he
misdirected himself as to its meaning by reference to ‘alterations’ in Part 6,
I would remit the matter for further consideration by him. He could then
consider the arguments to which I have referred above, and no doubt others
also, before deciding whether, in the light of evidence, Part 9 applies or not.
Conclusion
I would hold: (1)
that the inspector was wrong to interpret ‘improvement’ in Part 9 by reference
to Part 6; (2) that his decision letter on this issue should be set aside; and
(3) that the issue should be remitted for reconsideration by the Secretary of
State.
I therefore would
allow the appeal.
Appeal allowed.
