Alleged change of land from agriculture to mixed use — Alleged breach of planning control — Enforcement notice quashed in part — Council’s appeal to High Court dismissed — Inspector directed himself correctly as to law and applied correct test
This was an appeal relating to a decision of an inspector appointed by the Secretary of State for the Environment concerning two enforcement notices issued by the local authority in respect of land and buildings at Barnett Hill, Blakedown, Worcestershire. Enforcement notice A related to a change of use from agricultural to a mixed use of agriculture, ie the keeping of horses for recreational purposes, leisure plot, the stationing of two caravans, the parking of a vehicle and horse trailer and the general storage of miscellaneous items. Enforcement notice B related to operational development, ie the erection of structures, fencing and gate, laying of slabs and the construction of a sand pit. Notice A effectively required only agricultural use to take place. Notice B required the removal of all structures, fencing, slabs and sand pit.
A public inquiry was held on January 14 1994. The inspector quashed notice A on the basis that either the matters complained of in the notice had not occurred or, if they had, they did not constitute breach of planning control. He upheld notice B, but only to the extent that an animal shelter, a hay store and inspection area were without planning permission and should be removed. The council appealed under section 289(1) of the Town and Country Planning Act 1990. The main complaint was that the inspector’s conclusion that the use of the leisure plot was ancillary to the main agricultural use of the land was irrational and perverse.
Held The appeal was dismissed.
1. The inspector had to find whether the use by the applicant was ancillary to the main primary use. That necessarily involved an exercise of subjective judgment. Having inspected the site, the inspector essentially had to decide whether the use was ancillary. That was a judgment of fact for the tribunal of fact to reach.
2. The Court of Appeal could only proceed on issues of law. It was not for the court to find an inspector’s findings of fact to be absurd or perverse: see Clarke v Secretary of State for the Environment [1992] 3 PLR 146.
3. The inspector had correctly directed himself to the law asking what the main purpose of the planning unit was. He asked whether the ancillary use had been lost, the leisure plot having a separate use in its own right. On the evidence before him he was entitled to reach the conclusion that it had not and that the primary use of the land remained agriculture: see ELS Wholesale (Wolver-hampton) Ltd v Secretary of State for the Environment (1987) 56 P&CR 69.
4. The applicants argued that the inspector’s conclusion had been perverse and one which no inspector properly directing himself could have reached. There might be grounds for thinking that the view formed by the inspector was surprising but that did not mean it was perverse.
5. The court had to guard against the temptation to enter the field of facts second hand. That would be usurping the function of the tribunal of fact which had heard the evidence and seen the parties and the land in question.
Tobias Davey (instructed by Sharpe Pritchard, London agents for the solicitor to Wyre District Council) appeared for the local planning authority; Timothy Straker (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
