Council refusing lawful development certificate for claimant’s proposed use of land – Inspector upholding council’s decision – Claimant appealing – Whether proposed use of temporary or permanent nature – Whether inspector erred by failing to address duration of use – Whether physical character of land relevant – General Permitted Development Order 1995 Schedule 2 Part 4 Class B Article 3(1) – Appeal dismissed
In the 1980s the claimant carried out engineering operations, including the creation of banks, depressions and jumps, upon land at Hill Farm, Ipswich (the appeal site), in order to create an off-road racetrack. The appeal site was then used for that purpose, but was operating without planning permission. Sussex Coastal Disctrict Council served enforcement notices upon the claimant and the use of the site as an off-road racetrack ceased.
In 1998 the claimant applied for a lawful development certificate (LDC) in respect of the operational development that had taken place at the appeal site during the 1980s. He also applied under section 191(1)(a) of the Town and Country Planning Act 1990 for a LDC, which certified as lawful: “use of the agricultural land for the purpose of vehicular sports and leisure activities for a period not exceeding 28 days in any one year”. The council granted a LDC in respect of the first application but refused the second. The claimant appealed and an inquiry was held.
Section 191(2) of the 1990 Act provided that a proposed use of land was lawful for planning purposes if “(a) no enforcement action may then be taken in respect of it whether because it does not involve development or require planning permission …”. The claimant contended that he did not require express planning permission to use the site for such a purpose for up to 28 days in any one year because planning permission for that temporary use had been granted by virtue of Article 3(1) Class B Part 4 of Schedule 2 to the General Permitted Development Order 1995 (the GPDO). He submitted that his proposed use of the site satisfied section 191(2) and was lawful.
The inspector, however, noted that there had been physical changes to the appeal site since the previous inquiry. She found that it remained grassed-over and that while it would be possible for sheep to graze on it, it retained features associated with the unauthorised vehicular sports use. The inspector concluded that, in the light of the existing character and appearance of the land, the reintroduction of the vehicular leisure use would amount to a permanent, although intermittent, use. Consequently, she upheld the council’s refusal to grant a LDC.
The claimant appealed under section 195 of the 1990 Act, submitting that, in assessing whether a proposed use fell within Part 4 Class B of the GPDO, the existing lawful character and appearance of the land was irrelevant. He claimed that the starting point was “the land” in its existing form, which included any lawful additions or alterations. Any new effects on the character and appearance of the land that would result from the proposed temporary use were of subsidiary relevance. Thus, by taking the topography of the land into account, the inspector had made an error of law. It was submitted that she failed to address the principle issue, namely, the duration of the proposed use. Nor did she consider reversion to normal use between vehicular events.
Held: The appeal was dismissed.
1. The purpose of the GPDO was to enable landowners to use their land for occasional or temporary purposes outside of its normal use, without the necessity of first obtaining planning permission. The process of obtaining permission involved local authority intervention. That seemed to point towards consideration, not just of the temporal nature of the use sought, but also of its character, and that in turn involved looking at the nature of the operation as a whole. In so doing, it was impossible to ignore the features of the land upon which the proposed use would take place.
2. As a matter of law, physical changes made to the land were a relevant consideration in the inspector’s assessment of the character of the proposed use. A decision maker was not simply limited to looking at duration in every case. An assessment of the character of the proposed use could not sensibly exclude a factor that was both necessary for the proposed use to take place and that had been created solely for that purpose.
3. The GPDO did not uphold the right to carry out physical works. Had the works not been done, the claimant would not have been able to carry them out without planning permission. There was a distinction between cases in which the layout was purely coincidental (for example, between a runway on a disused airfield and the instant case, there would be a causal connection between the works deliberately executed and the proposed use). Therefore, whilst duration was likely to be decisive in many cases in determining whether a use was temporary for the purposes of the GPDO, it was not so in the instant case.
4.The inspector was entitled to take into consideration that the layout of the land rendered it suitable for the use under consideration and to consider that the works to achieve that layout had been undertaken by the claimant. She was correct to uphold the refusal to grant a LDC and was also correct in concluding that the introduction of the proposed vehicular leisure use would amount to permanent use rather than a temporary or occasional use: Webber v Minister of Housing and Local Government [1968] 1 WLR 29 considered.
Simon Bird (instructed by Gotelee & Goldsmith, of Ipswich) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
