Material considerations — Livestock shed built without planning consent — Retrospective planning permission granted subject to condition that it be used solely for winter lambing — Proper approach to statutory duty under the Town and Country Planning Act 1990 section 54A — Whether local planning authority entitled to have regard to existence of unauthorised building in granting planning permission
In November
1995 E was granted planning permission to erect a winter lambing cover of
polytunnel. In December 1995 E, contrary to that permission, erected a
livestock shed different in size and other characteristics than that the
subject of the November planning permission. The shed bordered the curtilage of
the respondent’s property, which was within a conservation area. At the
invitation of the appellant local planning authority E made an application for
retrospective planning consent to retain the livestock shed. In reporting to
the committee, planning officers recommended that planning permission be
refused on the grounds, inter alia, that the construction of the
building impinged unreasonably on the privacy and amenity of the respondent’s
land, and the use of the building was likely to give rise to a nuisance by way
of noise and smell. Against that recommendation the council granted planning
permission subject to a condition designed to minimise the impact of the shed
to the respondent’s occupation of her property. The respondent’s application
for judicial review was allowed and the planning permission was quashed. The
council appealed.
The council
had complied with section 54A. It was not accepted that a local planning
authority are never entitled to consider the likelihood of enforcement action
at the time when an application for retrospective planning permission for a
building erected without planning permission is before them: see pp100–103 and
107. The council were not merely entitled, but in practice bound, to take
account of the existence of the lambing shed, which had been constructed
without planning permission having been granted; it was a relevant fact that
had to be taken into account. The weight to be attached to the fait accompli
was another matter. The policy of the law must be to discourage any belief that
persons who carry out development without planning permission are likely to
obtain an advantage by breaking the law. The conditions imposed were reasonably
stringent, but they were not unreasonable in the circumstances. Where a local
planning authority grant retrospective permission for an existing building (and
must be supposed to have had in mind the drastic
of permission even though enforcement would be a separate decision) conditions
strictly controlling the building’s use may assume particular importance: see
pp104–105 and 108. The condition restricting the use of the building was valid:
see pp105 and 108.
to in the judgments
City of
Edinburgh Council v Secretary of State for
Scotland [1997] 3 PLR 71
Tesco
Stores Ltd v Secretary of State for the
Environment [1995] 1 WLR 759; [1995] 2 All ER 636; 93 LGR 403; [1995] 2
EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72, HL
Appeal against
the decision of Mr Malcolm Spence QC (sitting as a deputy judge of the Queen’s
Bench Division)
This was an
appeal brought by Leominster District Council against the decision of Mr
Malcolm Spence QC, sitting as a deputy judge of the Queen’s Bench Division,
quashing the grant of planning permission in judicial review proceedings
brought by the respondent, Patricia Pothecary.
Lieven (instructed by Sharpe Pritchard) appeared for the appellants, Leominster
District Council.
(instructed by Daniels Ferraby & Co, of Tewkesbury) represented the
respondent, Patricia Pothecary.
following judgments were delivered.
SCHIEMANN LJ: The council are a planning authority. They granted permission for
a winter lambing shed. Mrs Pothecary lives in the property neighbouring the
lambing shed. She brought proceedings by way of judicial review seeking the
quashing of that grant of planning permission. Mr Ian Dove submitted on her
behalf essentially that:
1. the grant
of permission was illegal on the basis that it was so irrational that it was
not within the range of options lawfully open to the planning authority;
2. the
authority when deciding to grant permission gave weight to a factor to which
they were not entitled to give weight, namely that the lambing shed had already
been built;
3. a condition
which was imposed upon the grant of permission by the authority was unlawful
and, if that be so, it should be quashed and the permission with it.
She was
successful before Mr Malcolm Spence QC, sitting as a deputy judge. The
authority appeal to this court.
The appeal
raises some points of general interest, but before coming to those it is
necessary to set out the undisputed facts in some detail. That is because any
submission that the grant of planning permission is irrational, while
undoubtedly a theoretically possible ground for quashing a permission, is one
which will only very seldom be accepted by the courts. The reason for that is
simple. It involves the danger of the court substituting its own value judgment
on what is environmentally
that decision, namely the local planning authority. Such a judgment is
notoriously one in relation to which people of good will and ability can
disagree.
The Town and
Country Planning Act 1990 (the Act) provides an appellate structure which can
be invoked by those refused planning permission. On such an appeal the
environmental and other merits and demerits of the application are at large.
However, the Act does not provide a comparable appellate structure for those
disadvantaged by the grant of planning permission to others. The nearest it
gets to giving such people (‘objectors’) rights is to provide for potential
objectors to be notified of planning applications in time for them to bring
their objections to the attention of the planning authority, and to provide
that objectors, who do not feel happy at the prospect of the planning authority
coming to a decision on the application, may ask the Secretary of State for the
Environment to call in the application for his own decision. What the authority
and the Secretary of State do about such material emanating from objectors is
up to them. Beyond that, such rights as objectors have spring from the common
law requirement that those entrusted with powers must use them lawfully.
Facts
Mrs Pothecary
lives at Longford House. Bordering on the curtilage of the house is Mousenatch
Farm, the property of Mr and Mrs Edwards. Both properties are within the
Kingsland Conservation Area. The operations at Mousenatch Farm include sheep
farming. In late December 1995 a livestock shed made of steel and wood was
erected without planning permission close to the boundary of Longford House,
with its long side running approximately parallel to the curtilage boundary and
10m from it at its closest point and 20m at its furthest. Furthermore, a
concrete apron around the shed was laid which abuts the curtilage of Mrs
Pothecary’s land, the back garden of Longford House. The authority did not
serve an enforcement notice, as they might have done. Instead they invited an
application for retrospective planning consent for the retention of the
livestock shed. Such an application was made, although we have not seen its
terms. The planning officers reported to the committee in a four-page report of
which the following are the most significant passages in the present context:1
1 Schiemann LJ: I have inserted the numbering of the paragraphs and
the emphases for ease of exposition.
1. The site
lies in Kingsland Conservation Area.
2. This is a
retrospective application for an agricultural building for winter lambing. It
measures 32 metres times 21 metres and is 3 metres to eaves and 5.5 metres to
ridge. Members will see that the building is substantially complete.
3. Permission
was granted under delegated powers on 6 November 1995
site as the building under consideration but it would have been 44 metres long
times 9 metres wide and 3.3 metres high. (Figures in brackets were given as the
comparative dimensions of the existing building.) The permitted building would
have been a galvanised steel frame covered with green polythene cladding.
Policy
4. Policies
A1 and A3 of the County Structure Plan and Policy A40 of Leominster Local Plan
are relevant.1
1 Policy A1 provides:
In
considering proposals for development on agricultural land the following
factors will be taken into account:
(i) …
(ii) The
agricultural implications of the development should not be considered in
isolation but together with the environmental, ecological and economic aspects
of the proposals.
(v) The need
to facilitate development and economic activity that provides jobs.
(vi) The
continuing need to protect the countryside (including its environmental and
ecological aspects) for its own sake rather than primarily for the productive
value of the land.
Policy A3
provides:
Applications
for the construction of agricultural buildings will be treated sympathetically
where a need can be shown but such buildings should, wherever possible, be so
sited and designed as to harmonise with the surrounding rural area.
Policy A40 of
the local plan provided:
The Local
Planning Authority will only permit new agricultural buildings … which are
considered essential for efficient food production or forestry, provided that:
(i) they are
an efficient and appropriate use of land.
(iv) they are
designed to fit in with the surrounding landscape.
(v) they do
not cause undue harm to the amenities that should properly be enjoyed by
adjacent properties …
(vii)
Intensive stock rearing units should be so sited in relation to nearby
residential development that the houses will not be adversely affected by noise
and smell.
The deputy
judge also referred to Policy A30 of the local plan:
Within any
designated conservation area:
(1) Proposals
which would harm the character of buildings and their setting will not be
permitted.
(3) Only
those full planning applications for new development alterations and additions
to existing buildings and redevelopment proposal which have been designed to
fit in with the character of the area will be considered favourably.
5. The
material considerations in this instance are the impact of the building on the
landscape, the general impact of the building on the amenity of neighbouring
property and the use to which the building is put.
Planning
Comment
6. The
building can be seen from the B4361 when approaching Cobnash but at a distance
and against a group of other buildings. When hedgerows and trees are in leaf it
probably will not easily be seen. There is therefore no landscape objection.
7. The impact
on neighbouring property is a matter of concern. The nearest property is some
30 metres from the building and given this proximity your Officers would
ordinarily have sought to negotiate a different location for the building … In
its present location the building does not deprive Longford House of daylight
or sunlight but it does have a substantial presence which imposes on the
amenity of that property. In constructing the building the concrete apron has
been extended so that effectively a through route between the farmyard and the
lane running along the front of Longford House has been created. The use of
this area further impinges on the privacy and amenity enjoyed by the residents.
8. The use of
the building is for lambing. Clearly this is a use which takes a small proportion
of the year and it is not clear what use the building will have for the
remaining part of the year. It has been noted and members will see that
other buildings on site are used for cattle. A similar use for this building
would bring with it substantial problems of noise and smell for Longford House.
Any condition restricting the use of the building would need to be
reasonable having regard to the scale and cost of the building. It could
easily be argued that the building is too expensive an asset to be used for
only two or three months in a year.
9. It is felt
that the combination of impact on Longford House and the potential
for the building to be a general livestock building are such that the
application should be refused.
Recommendation
That planning
permission is refused for the following reason:
10. The
construction of a livestock building and creation of an operational area
to the West of it impinges unreasonably on the privacy and amenity of Longford
House and the use of the building is likely to give rise to a nuisance by
way of noise and smell.
Under the
heading of Public Comment there is a reference to two letters which had
been received from the owners of Longford House and the planning consultant
acting on their behalf. They are copied to the committee. Under the heading Further
Planning Comment we find the following:
11. Planning
permission was granted for a polytunnel type lambing cover on the site in
November 1995. The structure had a maximum height of 3 metres and by virtue of
its design could be used for little other than its intended purpose. The
neighbours were notified and no objection was received. The permission
establishes the acceptability of the location for lambing purposes which, in
any case, took place outdoors in the vicinity of the existing agricultural
buildings. The building which has been erected is a purposely designed
livestock building which could be used to house sheep or cattle.
12. Officers
have discussed a number of points with the agent which could ameliorate the
impact of the building and nuisance experienced by the neighbouring properties.
These could include a legal agreement to restrict the use of the building to
housing sheep …
Then there is
a passage headed Further Comment since the Site Meeting:
13. Your
Principal Environmental Health Officer (Pollution) advises ‘I would take this
opportunity to express concern about the likely nuisance caused to the
occupants of Longford House due to the extremely close proximity of the
agricultural building, and the associated concrete apron/hard standing, which
essentially extends the farmyard to the boundary of the house. The provision of
the concrete apron will permit the use of noisy machinery etc on land adjoining
the garden of the dwelling with virtually no protection provided by
separation’.
14. Whilst
appreciating that planning permission has already been granted for a polytunnel
lambing cover, this application appears to be for a building of a different
nature with the potential for nuisance being on a much greater scale. I
would be particularly concerned about possible noise and smell nuisance if the
use of the building for the housing of livestock was intensified or if it was
used for other livestock purposes than the lambing of sheep.
That is the
end of the officers’ report.
Prior to the
decision on the planning application, but after receipt of an early draft of
the above report, which was to substantially the same effect, there was a site
meeting attended by 21 out of 22 of the planning committee. They spent about 20
minutes on Mr Edwards’ land. There was a lot of debate on possible conditions
if the applications were approved. Officers stressed planning policies and
conservation area implications. The committee then moved to the Pothecary site.
They went into the back garden and spent 10 minutes or so viewing the
buildings. Again some discussion took place with Mrs Pothecary making comments
and points to members.
The meeting at
which permission was granted took place on March 19. Of this meeting, Mr
Morris, who was chairman of the planning committee at the time, deposes as
follows:
I remember
that the Committee regretted that the building was already there. I was under
the impression that, had the building not been built, members would have
approved the principle of such an agricultural unit, but not necessarily on
that site. Members were clearly conscious of the objections of neighbours, but
felt they could approve the development subject to minimising the effect by use
of strong conditions. I believe that members were mindful of the fact that a
polytunnel construction had already been approved which in itself would have
been quite a large and intrusive construction. I believe that members tried to
bear in mind specific points raised in the letters of objection when considering
conditions and that the Committee went out of its way to overcome any possible
problems.
Generally, the
conditions stemmed from letters received and the site visit. Later on in his
affidavit Mr Morris says:
Members were
well aware that the site fell within the conservation area as it was stated in
the report. I cannot emphasise enough that a site visit took place, and was
well attended. However members would also have to bear in mind that fact (sic)
that they were dealing with a working farm and that the farmer’s needs would
require reasonable consideration, but that conflicting considerations would
also have to be balanced.
One of the
points which had been made on form 86a was that the respondents’ committee took
into account matters which they were not entitled to take into account, namely:
that the
livestock shed had already been erected so that there was merit in allowing it
to remain rather than require it to be removed to an acceptable position …
Mr Morris in
his affidavit says:
This
statement is correct, and I feel that the Committee was quite entitled to take
into account the fact that the shed had already been erected.
In para 9, at
the very end of his affidavit, Mr Morris refers to a resolution which the
planning committee had passed in June 1994 and which read:
That if
planning permission is granted contrary to policy and officer recommendation, a
statement of the reasons for the decision should be part of the motion of the
member moving approval and be incorporated in the minutes.
In para 9.3 he
says:
The policies
relevant here are A1 and A3 of the Structure Plan and A40 of the Local Plan …
The livestock shed here was in members’ view not contrary to these policies,
and indeed the Officer’s report did not suggest that the development was
contrary to policy. In these circumstances there was no reason to apply the
resolution and give reasons. However the resolution clearly has some relevance
to the case put forward by the applicants and I therefore thought it
appropriate to put it before the court.
In the event,
the local planning authority decided to grant planning permission. The document
doing so under the heading of Proposed Development describes this as
follows:
Erection of
an agricultural building for Winter lambing at Mousenatch Farm, Kingsland.
The council
gave permission:
for the
development described above in accord with the application and plans deposited
with the Authority subject to the following conditions:
1. This
permission is solely for the purpose described in the application — for Winter
lambing and the building shall not be used for the keeping of any other types
of livestock. The building shall not be used for any other purpose whatsoever
without the written consent of the Local Planning Authority.
Reason
In the
opinion of the Local Planning Authority, any use other than that stated in the
application would be a potential source of nuisance to the occupiers of
Longford House.
And then there
are various other conditions designed to minimise the impact of the building on
the occupiers of Longford House.
Relevant
statutory provisions
Section 70(2)
reads:
In dealing
with [a planning] application the authority shall have regard to the provisions
of the development plan, so far as material to the application, and to any
other material considerations.
Section 54A,
which was inserted by the Planning and Compensation Act of 1991 reads as
follows:
Where, in
making any determination under the planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations indicate otherwise.
Section 72(1)
of the Listed Buildings Act of 1990 provides:
In the
exercise, with respect to any buildings or other land in a conservation area,
of any [functions under the planning
acts] …
(2) special
attention shall be paid to the desirability of preserving or enhancing the
character or appearance of that area.
While this
judgment was in draft, the House of Lords issued its opinions in City of
Edinburgh Council v Secretary of State for Scotland.1
That case was in part concerned with the Scottish equivalent of section 54A of
the Town and Country Planning Act 1990. I cite it because there is, if I may
respectfully say so, a useful discussion in the opinion of Lord Clyde of the
impact of this section on the duties of the authority and of what the approach
of the court ought to be on any judicial review application. What he said
there, in my judgment, represents the law of England as well as that of
Scotland. He said, at p83B:
1 [1997] 3 PLR 71 ante.
the section
has not touched the well established distinction in principle between those
matters which are properly within the jurisdiction of the decision maker and
those matters in which the court can properly intervene. It has introduced a
requirement with which the decision maker must comply, namely the recognition
of the priority to be given to the development plan. It has thus introduced a
potential ground on which the decision maker could be faulted were he to fail
to give effect to that requirement. But beyond that it still leaves the
assessment of the facts and the weighing of the considerations in the hands of
the decision maker. It is for him to assess the relative weight to be given to
all the material considerations.
He goes on to
say, at p84A:
[The decision
maker’s] decision will be open to challenge if he fails to have regard to a
policy in the development plan which is relevant to the application or fails
properly to interpret it. He will also have to consider whether the development
proposed in the application before him does or does not accord with the
development plan. There may be some points in the plan which support the
proposal but there may be some considerations pointing in the opposite
direction. He will be required to assess all of these and then decide whether
in light of the whole plan the proposal does or does not accord with it. He
will also have to identify all the other material considerations which are
relevant to the application and to which he should have regard. He will then
have to note which of them support the application and which of them do not,
and he will have to assess the weight to be given to all of these
considerations. He will have to decide whether there are considerations of such
weight as to indicate that the development plan should not be accorded the
priority which the statute has given to it. And having weighed these
considerations and determined these matters he will [be] required to form his
opinion on the disposal of the application. If he fails to take account of some
material consideration or takes account of some consideration which is
irrelevant to the application his decision will be open to challenge. But the
assessment of the considerations can only be challenged on the ground that it
is irrational or perverse.
Lord Clyde
rejected a submission that inevitably in the practical application of the
section, two distinct stages should be identified. He stated, at p84H:
The precise
procedure followed by any decision maker is so much a matter of personal preference
or inclination in the light of the nature and detail of the particular case
that neither universal prescription nor even general guidance are useful or
appropriate.
Judgment
The deputy
judge’s view of the matter was plain. He said:
It is
completely manifest that the proposal is not in accordance with the Local Plan.
More importantly there is no evidence in the papers that it is in accordance
with it. Indeed the evidence is all one way, to the effect that it is not in
accordance, save for Mr Morris’ reference to the members’ view in para 9.3. In
that same sentence he seems to be mistaken as to the officer’s report. In the
first place there is no reference anywhere in the papers to policy A30, neither
expressly nor by implication particularly not in the officer’s report nor in
para 9.3. It is impossible to consider that this building does not harm the
character of the setting of Longford House in particular. There is no evidence
that it does not. Moreover, it is beyond question that the building has not
been designed to fit in with the character of the area. Accordingly there are
two aspects in which the proposal does not accord with policy A30. With respect
to policy A40(4) the building has hardly been designed to fit in with the
surrounding landscape, albeit the officer records that there is not a landscape
objection.
The learned
judge then turned to consider policy A40(5). He cited from the officers’ report
and a passage from an affidavit by the applicant, which
concluded:
Quite
obviously all this harm is undue. Mr Morris … nowhere disputed any of these
facts, neither as presented by the officers nor as presented by the applicant.
Nowhere does he say that the committee members disagreed. Accordingly, on the
evidence, it is an impossibility to find, if indeed the committee did find,
that the proposal was in accordance with policy A40. The only evidence was
evidence of undue harm. For these reasons my judgment is that the proposal was
not in accordance with either policy A30 or A40 and that the committee has
erred in law for the reasons which I have given in thinking that it did.
Later in his
judgment he holds that:
The officers
and committee paid no regard whatever to their duty under section 72 to pay
special attention to the desirability of preserving the character or appearance
of the conservation area. I refuse to infer … that they did so.
Was the
grant of planning permission irrational?
Mr Dove
supported the view of the judge. The matter was put in various ways in his
excellent submissions.
1. He pointed
out that there had been no express mention in the report of policy A30 and that
a failure to take this into account would be an error on the part of the
authority. It is common ground that the members had all the local plan among
the papers available to them and that there is no obligation on the officers in
their report to mention every policy that might conceivably be regarded as
relevant. It is common ground and clear from sections 54A and 70(2) of the Act
that ‘determinations shall be made in accordance with the plan unless material
considerations indicate otherwise’. The purpose of this is to try and obtain
some sort of consistency and long-term objectives out of the planning process.
However, in many cases, of which the present is an example, each side of the
argument will be able to cite different policies in the same or different plans
in support of their contentions. In many cases the relevant policies will
contain within themselves value judgments upon which reasonable persons may
differ. Thus in the present case, while agreement might be secured that the
proposal would cause harm to the amenities of Longford House, there might well
be room for argument as to whether it was ‘undue’ within the meaning of policy
A40. In the context of the present case the considerations in A30 do not
materially differ from those in A40, although the former talks merely of ‘harm’
whereas the latter talks of ‘undue harm’. It seems clear that the character of
this part of the conservation area is determined in part by Longford House and
Mousenatch Farm and in part by the landscape. As the officers pointed out in
para 5:
the material
considerations are the impact of the building on the landscape, the general
impact of the building on the amenity of neighbouring property and the use to
which the building is put.
So I am not
persuaded that the members applied their mind to the wrong question or failed
to bear in mind that which they ought to have borne in mind.
2. He relied
on the judge’s finding that it was beyond question that the building had not
been designed to fit in with the character of the conservation area. This
judgment had to be made by the planning authority. I fear the judge was led
into error by his own huge experience in the field of planning inquiries. He
came to a value judgment when he rejected the value judgment made by the
authority. He did so without going on site. The members had been on site with a
view to making the very judgment which they were called upon to make. So had
the officers. The officers concluded1 that there was no landscape
objection. That left the effect on Mousenatch Farm and Longford house. No one has suggested an adverse
effect on the farm. That leaves the house. Everyone agrees that there will be
an adverse effect on the house. The question was whether this was undue or
unreasonable. Should Mr Edwards be prevented from having that building there
because of the likely future effect on the amenities of those in Longford house? That was the question for the
officers and ultimately for the committee. The officers answered that question
in the affirmative, the committee in the negative. It is clear from those
portions of the officers’ report, which I have emphasised in the citations
above, that a major part of the reasoning which led them to the conclusion that
the effect on amenities would be undue was the fear that what had started as a
winter lambing shed would develop into something which would harm amenities
significantly more, in particular an all the year-round use of the shed for
animals of various sorts. For my part, I can fully understand this fear on the
part of the officers. The members also understood it. It is clear from the
members’ decision that they thought that such a year-round use for animals of
all sorts could be prevented by the use of the condition which they imposed. I
think (subject to the lawfulness of the condition which I consider later in
this judgment) that that was a view to which the members were entitled to come.
1 para 6 of their
report.
If the members
were entitled to come to the view that there was no valid landscape objection
and that the harmful effect on the only house likely to be affected was not
undue provided that a suitable condition was imposed, as I think they were,
then I consider the case for saying that the development was not in accord with
the development plan largely disappears. The judge, as it seems to me, fell
into error in his use of the concept of evidence when the issue before the
planning authority was a value judgment such as whether or not the effect on
amenities is or is not undue. The concept of evidence is used in two different
ways: factual evidence and opinion evidence. Factual evidence is apposite when
the question is: ‘What are the facts?’, and even in certain circumstances when
the question is: ‘What are the facts likely to be?’, factual evidence may
well be a prerequisite for opinion evidence. I can easily conceive of
situations where it would be perverse of a decision maker to reject factual
evidence. However, when the question is one of a value judgment such as: ‘Will
this spoil the view?’, or ‘Is it reasonable to expect someone in a rural area
to put up with the smell of animals concentrated in one area?’, it is much
easier for a decision maker to reject even unanimous opinion evidence on the
basis of agreed facts without that rejection being castigated as unlawful by
the courts. The judge was clearly impressed by the fact that nowhere in Mr
Morris’ affidavit is there any statement that the committee did not think the
harm to the amenities of Longford House undue. I accept that this is not stated
in terms using the word ‘undue’, but it is clear from the first citation which
I have made from the affidavit, from the grant of the permission and from the
first condition, and the reason given for it, that the committee did not think
the harm to the amenities of Longford House undue.
3. He pointed
to para 9.3 of Mr Morris’ affidavit as indicating that members had not properly
understood the officers’ report. That report, he submitted, indicated that
officers considered the proposal to be contrary to policy and therefore Mr
Morris was in error in suggesting the contrary. I accept that the officers’
report indicated that they considered the proposal to be contrary to policy.
The reason for this conclusion of theirs was that they considered the likely
effect on Longford House undue. Had the officers come to the same view as the
planning authority, namely that the effect of the retention of the lambing shed
(subject to an enforceable condition) on Longford House would not be
undue, then they would not have concluded that the retention of the
lambing shed was contrary to policy. So I do not accept that the members had
not properly understood the officers’ report.
Were the
authority entitled to have regard to the existence of the lambing shed?
This part of
the case raises a point upon which there is, we are told, no authority. The
judge did not need to deal with it in view of his finding on the first point,
and did not do so. It is common ground that members took into account the
existence of the unlawfully erected lambing shed in its present site as a point
in favour of granting permission. That much appears from the first of my
citations from Mr Morris’ affidavit. Mr Dove submitted that the effect of this
is that they gave an advantage to a person who had acted, consciously or
unconsciously, in defiance of planning laws over persons who kept to the law.
The policy of the law should be to discourage this. In broad terms I agree.
This court has stated as much in many cases touching illegal immigrants.
Mr Dove went
on to submit that the authority erred in law in giving the existence of the
unlawfully erected shed any weight whatsoever in favour of the grant of
planning permission for its retention. I disagree for these reasons.
The essential
question for the authority in the present case was: ‘Given that winter lambing
on the site is a permissible activity, is the actual and potential increase in
adverse effects on Longford House resulting from the
grant it?’ The background to a consideration of this question is to compare
what would happen if permission were granted, with what would happen if
permission were refused.
The planning
advantages flowing from a grant of permission would be that, if the activity
was not confined to a specific part of the year and specific animals,
enforcement action for breach of condition could be taken against it. A
significant, although not the only, disadvantage of the grant of permission
would be that the shed itself could not be the subject of enforcement action.
If, however, the shed were going to be allowed to remain there anyhow, even if
permission were refused, then that disadvantage inherent in any grant of
planning permission would disappear. So a relevant question for the authority
to ask themselves was: ‘Are we of the view that it is expedient that the
existing shed be pulled down?’ The question is phrased that way because the
only presently relevant way that the authority could secure the pulling down of
the shed is by the issue of an enforcement notice. The authority are only
empowered by section 172(1) to issue an enforcement notice if it appears to
them that it is expedient to issue the notice, having regard to the provisions
of the development plan and to other material considerations.
I therefore
reject the submission that a planning authority are never entitled to consider
the likelihood of enforcement action at the time when the application for
retrospective planning permission for a building erected without planning
permission is before them. It is not rare that buildings are put up without the
appropriate planning permission. Sometimes there is no planning objection at
all. Sometimes there is an insuperable objection. There are many situations
between the two ends of what is a continuum. There are situations where the
authority would not have given permission for the development if asked for
permission for precisely that which has been built, but the development is not
so objectionable that it is reasonable to require it to be pulled down. To
require this would be a disproportionate sanction for the breach of the law
concerned. That is why parliament has imposed the requirement of expediency.
What weight the authority give to the existence of the building is a matter for
the authority. There are policy reasons of the type identified by Mr Dove for
not giving much weight to the existence of a building put up without the
necessary planning permission, but these will not prevail in every case. They
will prevail in some. I accept that an authority may say: ‘It is presently
inexpedient to issue an enforcement notice, but we want to keep our options
open and see how things develop’. In such a case the existence of the building
can hardly weigh in favour of the applicant for retrospective planning
permission, for to grant it would result in the authority no longer keeping
their options open. However, there can equally be cases where the authority can
say that, while they would not have granted the permission for that precise
building there, it is not expedient to require it to be pulled down.
Circumstances vary infinitely.
Was the
imposition of the condition unlawful?
Mr Dove
submitted that the condition was unlawful and that if it was unlawful then the
permission must be quashed. Miss Nathalie Lieven, who throughout argued the
case for the authority with skill and economy, accepted that if the condition
was unlawful then the permission should, in the circumstances of the present
case, fall with it. The judge did not need to deal with this matter and did not
do so.
Mr Dove
submitted that the imposition of the condition was unlawful because it was
unduly onerous. He points to the fact that the officers, in what I have
numbered para 8 of their report, clearly feared that the imposition of a
condition such as the one under consideration might be considered unreasonable.
There is, at first blush and to me (at any event, a person with no knowledge of
sheep farming), something bizarre about constructing such a huge building for
ewes and their lambs only and that for a part of the year. Inevitably one
suspects that Mr Edwards has in mind coming back at some time later and asking
for permission for cattle — the very thing that the officers feared. Whether he
does or does not, his successor may do so. I accept that, but it does not seem
to me to make the condition unreasonable at the time it was imposed. Indeed if
anything it argues against Mr Dove’s proposition.
There is
nothing unreasonable in someone spending a lot of money on a shed which he knows
that he will not, in the present planning climate, be allowed to use in a
manner which makes that investment worthwhile, but which he hopes in due course
to be allowed to use to its full potential. That is no more unreasonable than
buying a house with five bedrooms in the hope of begetting a family of
sufficient size to fill it. Indeed Mr Edwards himself does not challenge the
condition, and is now out of time to do so. So far as his successors in title
are concerned, they will have bought at a price which reflects their assessment
of the situation.
Nor do I
consider it unreasonable of the authority to have imposed this condition even
at a time when they were minded not to relax it. The condition was imposed for
a planning purpose and it related to the development permitted. I do not accept
what is implicit in Mr Dove’s position, namely that it would be reasonable for
the authority to require Mr Edwards to pull the building down, but it is unduly
onerous and unreasonable, and therefore unlawful, to require him to use it for
the purpose for which he applied to use it and for that purpose only.
Mr Dove made
the point that various legislative provisions, which exist in order to protect
objectors from planning permissions being granted without their consent, may be
side-stepped by the imposition of a condition which envisages a written consent
falling short of a formal planning condition. He said this could happen here
and therefore the condition was unlawful. He postulates the planning authority
not notifying the owners of Longford House of any future application for
relaxation of the condition. I do not know whether the current standing orders
of the authority permit this to be done, but I would suspect the fear to be
more theoretical than real. One would expect that any application to relax a
condition imposed for the reason given would inevitably be
and is unobjectionable as such. What a planning authority cannot do is to seek
to defend an illegal condition by including in it the prospect of informal
relaxation.1 However, the mere inclusion of a provision for informal
relaxation in a condition does not render it unlawful.
1 See Circular 11/95 paras 32 and 36.
I therefore
consider that each of the three challenges to the validity of this planning
permission fails and that this appeal ought to be allowed. For completeness
sake, I ought to mention that Miss Lieven indicated that if we were minded to
find against her on the basis that the committee had failed to consider
something which they ought to have considered, then she would wish to have
leave to adduce two affidavits negativing that proposition. For my part, I do
not consider that the two affidavits are decisive of this appeal and, as I
understood her, in that eventuality she did not press her application, which I
am prepared to consider as withdrawn.
WALKER LJ: I have had the advantage of reading the judgment of Schiemann LJ
in draft and I agree that this appeal should be allowed for the reasons that he
gives. I add a few comments of my own.
The Scottish
equivalent of section 54A of The Town and County Planning Act 1990 was, as
Schiemann LJ observes, very recently considered by the House of Lords in City
of Edinburgh Council v Secretary of State for Scotland October 16
1997.1 In his speech, Lord Clyde rejected the Secretary of State’s
submission that the new section always requires a two-stage approach, the first
stage being for the decision maker to decide whether or not the development
plan should be given its statutory priority. This appeal shows that there are
cases, of which this is a striking example, when the first stage must be for
the decision maker to decide whether the proposed development is or is not in
accordance with the development plan.
1 [1997] 3 PLR 71 ante.
Sometimes, of
course, the answer to that question will be obvious (for instance, the
development plan may have a bald and unqualified prohibition on open-cast
mining or quarrying in a conservation area). But more often the development
plan will (as in the City of Edinburgh Council case, and as in this
case) contain exceptions, qualifications, overlapping or even contradictory
policies and issues on which value judgments have to be made. In such cases it
is desirable that planning officers should state their perception as to whether
or not any proposed development is in accordance with the development plan, and
that the planning authority should state whether or not they accept and agree
with the officers’ advice. I do not intend to give any encouragement to the
lengthy recital of policies as a matter of rote. What is important is for it to
be apparent how the decision maker has approached the important new statutory
duty imposed by section 54A.
In this appeal
it has not been easy to see exactly what the planning authority’s approach was.
But the full analysis in Schiemann LJ’s judgment leads me to the conclusion
that the committee must have considered the issue in terms of ‘undue harm’ to
the amenities of Longford House and that the conclusion which they reached was
not perverse or irrational. The deputy judge clearly found the decision
surprising, to say the least; but, as Lord Hoffmann said in Tesco Stores Ltd
v Secretary of State for the Environment [1995] 1 WLR 759,1
at p780H:
1 [1995] 2 PLR 72.
If there is
one principle of planning law more firmly settled than any other, it is that
matters of planning judgment are within the exclusive province of the local
planning authority or the Secretary of State.
I agree that
the planning authority were not merely entitled, but in practice bound, to take
account of the existence of the large metal and wood lambing shed which had
been constructed without planning permission having been granted. It was a
relevant fact that had to be taken into account. The weight to be attached to
the fait accompli was another matter.
The policy of
the law must be to discourage any belief that persons who carry out development
without planning permission are likely to obtain an advantage by breaking the
law. Nevertheless, circumstances vary: the range of possible cases extends from
a flagrant and deliberate breach of planning control to an inadvertent breach
in some minor respect, for instance an error of a few metres in siting a
building. The circumstances of the breach in this particular case were not
fully explored in this court. The size and permanence of the shed as actually
constructed (by comparison with the polytunnel structure for which permission
had been granted) was clearly something that concerned the planning officers.
The planning
officers’ recommendation (against granting retrospective permission) seems to
have been influenced by the thought that it might at some future time be
difficult for the planning authority to prevent the building from being used
for other farm purposes (in particular, for housing cattle) outside the lambing
season. The committee took the view that the amenities of Longford House could
be preserved by ‘strong conditions’.
The conditions
imposed were reasonably stringent, but they were not unreasonable in the
circumstances. Where a planning authority grant retrospective permission for an
existing building (and must be supposed to have had in mind the drastic
character of enforcement action which would be the likely sequel to a refusal
of permission, even though enforcement would be a separate decision) conditions
strictly controlling the building’s use may assume particular importance.
In such a case
the planning authority accept, albeit reluctantly, that the building is there
to stay, but can by the imposition of appropriate
necessary, enforcement) of the condition restricting the building’s use to
winter lambing is, it seems to me, a matter to which the local planning
authority should pay close attention.
SIMON BROWN
LJ: I have the very greatest sympathy for Mrs
Pothecary. Her neighbours, Mr and Mrs Edwards, have behaved quite
disgracefully. Having obtained planning permission for a polytunnel lambing
cover ‘which in itself would have been quite a large and intrusive
construction’ (as Mr Morris deposes), they then, in the clearest possible
breach of planning control, erected instead a solid wood and steel building
some 70% larger in area than that permitted, very much higher than permitted, one
end significantly closer than permitted and the whole building surrounded by a
large concrete apron.
The appellant
council’s planning officers expressed the view that the development ‘impinges
unreasonably on the privacy and amenity of Longford House’ (para 10 of their
report), a view, to my mind, consistent only with the conclusion that the
development ’cause[s] undue harm to the amenities that should properly be
enjoyed by adjacent properties’, and so is contrary to policy A40(v) of the
local plan. I therefore disagree with Mr Morris’ assertion in para 9.3 of his
affidavit that ‘the Officers’ Report did not suggest that the development was
contrary to policy’.
I am
nevertheless persuaded that that misunderstanding (as I regard it) of the
officers’ report does not vitiate the council’s decision, that it remained open
to the members who themselves (all but one) visited the site to form a
different view as to whether the development was contrary to policy, and that
they duly did so. I am further satisfied, for the reasons given by Schiemann
LJ, that the council had proper regard here to section 54A of the Town and
Country Planning Act 1990 and section 72(1) of the Listed Buildings Act 1990.
The other
central reason given by the officers for their recommendation in para 10 of
their report that planning permission be refused was that ‘the use of the
building is likely to give rise to a nuisance by way of noise and smell’. The
basis for that conclusion appears from paras 8 and 11 of the report.
Essentially, the officers were noting that ‘the building which has been erected
is a purposely designed livestock building which could be used to house sheep
or cattle’, that ‘any condition restricting the use of the building would need
to be reasonable having regard to the scale and cost of the building. It could
easily be argued that the building is too expensive an asset to be used for
only two or three months in a year’, and that ‘a similar use for this building
[for cattle, as other buildings on site] would bring with it substantial
problems of noise and smell for Longford House’.
As appears
from para 5.3 of Mr Morris’ affidavit, the members felt able to disagree with
their officers’ conclusion in that regard by deciding that the likelihood of
nuisance arising from this development (over and above what, in any event,
would have been expected from the permitted polytunnel construction) could and
would be prevented ‘by use of strong conditions’. Condition 1 alone is
relevant:
This
permission is solely for the purpose described in the application — for winter
lambing and the building shall not be used for the keeping of any other types
of livestock. The building shall not be used for any other purposes whatsoever
without the written consent of the local planning authority.
Reason: in
the opinion of the local planning authority, any use other than that stated in
the application [for winter lambing] would be a potential source of nuisance to
the occupiers of Longford House.
Again, I am
persuaded that the members were entitled to take the view that condition 1
could lawfully be imposed and that it would, by enforcement if necessary,
prevent this building being used any more offensively (in terms of creating
nuisance by noise and smell) than the permitted polytunnel construction. (The
additional loss of privacy and amenity from the physical impact of the
development cannot, of course, be controlled by condition; that [not, in the
members’ estimation, ‘undue’] is something which Mrs Pothecary will simply have
to put up with.)
Finally, I am
persuaded that the council were entitled to have regard to the fact that the
building had already been constructed, albeit of course in breach of planning
control. This consideration appears to have tipped the balance in favour of
granting a planning permission which would otherwise have been refused. I find
Schiemann LJ’s reasoning on this point compelling. Reluctant though inevitably
one is to allow a developer to be advantaged by having broken the law, that
advantage must by definition accrue in certain cases — notably whenever the
local planning authority do not think it ‘expedient’ to enforce against a
breach of planning control — and yet it will be a rash developer who builds in
expectation of such benefit: he is at risk of being ordered to pull down his
development and thus stands to lose everything.
I therefore
find myself, although not without considerable initial hesitation, in agreement
with Schiemann and Walker LJJ that this appeal must be allowed. But I wish to
add a final paragraph, and it is essentially for this reason that I am giving a
short judgment of my own.
This livestock
shed should never have been built. That it has been granted retrospective
planning permission and allowed to remain, is due partly to the fact that it
was unlawfully erected and partly to the appellant’s decision that its use
solely for winter lambing can and will be secured by the condition imposed. In
these circumstances, it would seem to me in the highest degree unlikely that
this condition can ever properly be relaxed. It could hardly now be said, as
was feared by the officers, that the condition is unreasonable ‘having regard
to the scale and cost of the building’; such a plea, indeed, would become ever
less plausible as time passes. I recognise that the law forbids the taking of
enforcement action by way of punishing a developer for his breach of planning
control. But it is one thing to permit a developer to benefit from a breach;
quite another to allow him then to build upon it, for all the world as if his development
had been lawful, and seek to whittle down the effect of a condition as central
to the grant of permission as the condition here.
Miss Lieven,
on behalf of the council, acknowledges that it would be Wednesbury
unreasonable for the council to give their written consent to any relaxation of
this condition without consulting the occupiers of Longford House. To my mind,
however, that concession does not go far enough. Even with such consultation it
seems to me that any material relaxation of the condition here, having regard
to the history of this development, would itself be at risk of Wednesbury
challenge.
The appeal was allowed.
