Enforcement notice — Access onto classified road — Meaning of “classified road” — Burden of proof on appeal against enforcement notice — General Permitted Development Order 1995 — Local Government Act 1966 — Appeal dismissed
The appellant’s caravan was situated on a site abutting a road onto which he had constructed an access way from the site. The second respondent local planning authority subsequently issued an enforcement notice complaining about the construction of the access, without planning permission, “onto a classified road”. The appellant appealed on the ground that the access did not constitute a breach of planning control. He relied upon Class B in Part 5 of the General Permitted Development Order 1995, which allowed development that was required by the conditions of a site licence. The appellant’s licence required that an appropriate access was necessary to enable his caravan to be taken on and off the site. The authority relied upon article 3(6) of the 1995 Order, by virtue of which the permission granted by Class B did not authorise any development that required or involved the creation of a means of access to “an existing highway which is a trunk road or classified road”. A classified road was defined in the 1995 Order by reference to section 12(1) of the Highways Act 1980. This provided that classified roads included highways that had been classified roads immediately before the 1980 Act came into effect. The central issue in the case was whether the road in question fell within that definition.
The inspector found that the appellant had failed to prove his case, and dismissed the appeal. That decision was upheld on an appeal under section 289 of the Town and Country Planning Act 1990, the judge finding that the evidence raised a strong prima facie case that the road was classified. The appellant appealed again. He contended, inter alia, that: (i) the judge had misconstrued the classification provisions of the Local Government Act 1966; and (ii) it had been unfair and unprincipled to require him to prove a negative.
Held: The appeal was dismissed.
1. The judge had correctly understood the effect of the 1966 Act, which was to provide that roads classified under the Ministry of Transport Act 1919 continued to be classified under the 1966 Act. Roads that qualified as classified roads at the commencement date of the 1966 Act, by virtue of having been created as such under the 1919 Act, continued to be so under section 12(1)(c) of the 1980 Act. On the evidence, the road in question had been a classified road in 1966.
2. An appellant complaining of an enforcement notice, by relying upon a general development order, was required to prove the entirety of his case with regard to that order. The judge’s finding that a strong prima facie case existed that the road was classified was sufficient to uphold the ruling that the appellant had not satisfied the requirements of the order.
Jonathan Clay (instructed by DMH, of Brighton) appeared for the appellant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent; William Upton (instructed by the solicitor to Mid Sussex District Council) appeared for the second respondents.
Sally Dobson, barrister
