Application for planning permission – Council refusing permission – Application appealing, claiming planning permission not required – Whether inspector to treat application as carrying implied application for determination as to whether planning permission required – Inspector not dealing with issue – Application to quash decision dismissed
The applicant applied for planning permission for the “placement” of two dovecotes at 19C Hyde Park Gardens, London W2. The application proposed the placement of the dovecotes in the garden area attached to the residential flat at the applicant’s address. Westminster City Council refused planning permission on the grounds of smells, general disturbance and nuisance, which the keeping of doves would cause to the detriment of residential amenity in the locality. An appeal was conducted by way of written representations. The applicant claimed that the real question was how many doves were consistent with the maintenance of residential amenity and that planning permission should be granted, since the number of doves could be regulated by means of a condition. It was also claimed on three grounds that planning permission was not required for the proposal: (1) the proposal constituted permitted development by virtue of the Town and Country Planning (General Permitted Development) Order 1995; (2) as a matter of fact and degree, no development was involved; and (3) the proposals constituted the use of land with the curtilage of a dwellinghouse incidental to the enjoyment of the dwellinghouse and hence did not constitute development with section 55(2)(d) of the Town and Country Planning Act 1990.
The inspector made a site inspection, which revealed that the dovecotes had already been constructed. He dismissed the appeal. The applicant applied for the decision to be quashed contending, inter alia, that the inspector had failed to fully and fairly determine the merits of the applicaiton and the issue whether planning permission was required. It was contended that the inspector should have treated the application as carrying with it an implied application for a determination as to whether planning permission was required for the proposal.
Held The application was dismissed.
Part VII of the 1990 Act was an entirely new and fully comprehensive code which repealed and replaced section 53 of the 1971 Act. In the light of the new provisions it was clear that the authorities of Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204, which related to the former provisions, could not represent the position arising from the new and different statutory provisions. It was no longer consistent with the scheme of the 1990 Act as a whole for an applicant to require the local planning authority, or the Secretary of State for the Environment, to determine whether permission was required as part of a planning application. Such a determination would side-step the detailed and comprehensive scheme enacted by parliament. Accordingly, an applicant could not expressly or impliedly seek a determination that planning permission was not required for the development for which planning permission was sought, as part of an application for planning permission under section 62 of the 1990 Act. Therefore, since the inspector had dealt fully and fairly with the planning issues which had arisen, the application failed.
Clive Newbery QC (instructed by Gardner Weller) appeared for the appellant; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondents, Westminster City Council, did not appear and were not represented.
