Barbara Atwill v New Forest National Park Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 22 March 2023 |
| Neutral Citation | [2023] EWHC 625 (Admin) |
| Docket Number | Case No: CO/3162/2022 |
| Court | King's Bench Division (Administrative Court) |
The King (On the application of)
and
[2023] EWHC 625 (Admin)
Mr Justice Lane
Case No: CO/3162/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms C Colquhoun (instructed by Addleshaw Goddard) for the claimant
Ms P Pattni (instructed by the Solicitor and Monitoring Officer, NFNPA) for the defendant
The Interested Party appeared remotely but did not participate in the hearing
Hearing date: 16 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
With permission granted by Sir Duncan Ouseley on 31 October 2022, the claimant challenges the decision of the defendant (as local planning authority), on 19 July 2022, to grant an application by Angela Vickers, the interested party (“IP”), purportedly made under section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”), for planning permission for the variation of condition 2 of planning permission no. 18/00262 for “dwelling; detached garage with office over; sewage treatment plant; details of lighting; demolition of existing dwelling and outbuilding to allow minor material amendment (AMENDED PLANS)” on land at Paysanne, Godshill Wood, Fordingbridge. I shall call this decision the 2021 variation.
A. BACKGROUND
The claimant and her husband occupy a property known as Bluebell Cottage, Godshill Wood, Fordingbridge. Bluebell Cottage lies directly to the north and uphill of the application site. Both properties lie within a wooded area of Godshill which is part of the protected New Forest National Park and the Western Escarpment Conservation Area (“CA”). Both sites are also subject to a policy preventing the erosion of rural darkness and tranquillity through artificial lighting.
The claimant and her husband have, since 2020, actively drawn the defendant's attention, through a series of complaints, analyses and correspondence, to a number of matters; first, to what has been built on the application site, in purported accordance with planning permission ref. 18/00262 (“the 2018 permission”), which they say clearly amounts to unlawful development; and secondly, to issues which mean that, in any event, the 2018 permission cannot lawfully be implemented or “built out”.
The claimant asserts that the unlawful development causes significant harm to the amenity of her property, and those of others living in the area, as well as wider planning and environmental harm as a result of the direct intervisibility between the dwellings and the light emissions from the application site.
The defendant has recognised the harm being caused. The defendant served an enforcement notice (“EN”) on the IP on 26 February 2021, under section 171A(1)(a) of the 1990 Act. The EN asserts that the IP has without permission constructed “(i) a dwelling, which has not been constructed in accordance with approved plans for a replacement dwelling; and (ii) an outbuilding” on the application site. The EN requires the demolition of both. The EN is currently the subject of an appeal by the IP under grounds (a), (f) and (g) of section 174(2). I am told that the EN appeal, which the defendant is resisting, is being held in abeyance in order to allow for the determination by this court of the status of the 2021 variation.
What is said to be the unlawful development comprises not only the dwelling and the outbuilding but also other development (including a swimming pool), which has been the subject of a retrospective planning permission (ref. 20/00005) that the defendant refused. This other development has not as yet been the subject of enforcement action.
The IP was allowed by the defendant to apply for retrospective permission for the dwelling, again through an application under section 73 of the 1990 Act (ref. 20/00903) (“the 2020 variation application”). On 15 February 2021, the defendant refused permission for the 2020 variation application on the basis that the as-built scheme had “resulted in a building which is unacceptably large in relation to the original dwelling”, which had “resulted in adverse impacts on neighbouring amenity, as well as on the immediate locality, the wider Conservation Area and the landscape”, due in particular to the “extent of glazing and re-orientation of the dwelling” (Section 12 of the officer's report on the 2020 variation application). In addition, it was confirmed in that report that the “alterations which have led to these adverse impacts are not considered to be minor material amendments”.
The EN confirms that the IP's dwellinghouse, as built, differs in terms of its positioning, footprint and dimensions from the approved plans for planning permission 18/00262 for a replacement dwelling. Accordingly, it has been built without planning permission, as has the accompanying outbuilding. As I have said, the EN requires the dwelling and outhouse to be demolished and the site cleared.
The claimant emphasises that the EN does not recognise the 2018 permission as forming a basis for remedying a breach of planning control in accordance with section 173(4)(a), although that was a power open to the defendant. It is submitted by the claimant that this would appear to imply that the defendant now accepts that the 2018 permission cannot form the basis of such a remedy.
In its statement of case to the Planning Inspectorate in connection with the EN appeal, the defendant confirms that its position is that the appeal should be dismissed and the EN upheld in every respect. The claimant says it is notable that the IP's Statement of Case contains no reference to the 2018 permission being a “fallback”. Instead, it is argued by the IP that permission should be granted for the as-built scheme; or that permission be granted for an alternative scheme, applying ground (a) and/or (f), relying on the approach taken in Tapecrown v First Secretary of State [2006] EWCA Civ 1744 and Ahmed v SSCLG [2014] EWCA Civ 566.
In addition, whilst it is not acknowledged on the face of the defendant's Statement of Case, or on that of the IP, the claimant contends that, as a consequence of the works to date, even if the 2018 permission could have been implemented, based on the inaccurate plans, it is a matter of fact that the 2018 permission cannot now, in any event, be built-out, given the works which have already taken place.
The claimant objected to the 2021 variation in a series of letters. In summary her objections were as follows:-
(i) The amendments proposed to the 2018 permission, the subject of the purported section 73 application, amounted to material changes to that permission (just as the 2020 variation application did);
(ii) The dwelling and development proposed are, in any event, contrary to public policy, given the increase in size upon the original dwelling which the 2018 permission sought to replace (when assessed against DP36 of the Local Plan);
(iii) The dwelling as amended would cause an unacceptable increased harm to a sensitive area, and harm to amenity, beyond the 2018 permission, together with other environmental harms; and
(iv) As set out in a letter dated 18 July 2022, the claimant drew the defendant's attention to the legal status of the 2018 permission; namely that it had not been lawfully implemented within the requisite three-year period (i.e. by 21 September 2021) and so was no longer extant.
The Officer's Report of 19 July 2022 for the section 73 application listed a number of differences between the 2018 permission and the 2021 variation application, including: differences in size of the dwelling; differences in orientation (bringing it closer to neighbouring boundaries); an increase in the size of the double-height gable-end window; and other changes to the fenestration. Despite these differences, the Officer concluded, in what the claimant says was in sharp contrast to the 2020 variation assessment but applying the same test, that these amendments amount to minor material amendments.
The defendant's Planning Committee was advised by the Officer at its meeting on 19 July 2022 that demolition of the original dwelling was an act which amounted to the lawful implementation of the 2018 permission and that this permission had therefore not lapsed. The Officer recommended that the defendant could and should grant the 2021 variation, subject to a condition that “within two years of the date of this decision, the as-built dwelling shall be amended in accordance with drawing numbers SGA-143-102D PL1 and SGA-143-104N Issue PL2 unless otherwise agreed with the New Forest National Park Authority”. This condition allows for time within which the development can be carried out but if, as contended by the claimant, the development subject to the 2018 permission had not been lawfully begun, then the condition has the effect of extending time for a development which needed to be started by 14 September 2021. This, it is submitted, is contrary to section 73(5)(a) of the 1990 Act.
The IP's application was granted and notice of grant was issued on 19 July 2022.
B. THE GROUNDS OF CHALLENGE
Ground 1: This alleges an error of law concerning whether development had “begun” and the status of the 2018 permission. In his report, the Planning Officer did not address the question of whether the 2018 permission was still extant. When questioned about this issue at the meeting of the Committee on 19 July 2022, the Officer advised that the demolition works which had taken place lawfully implemented the 2018...
To continue reading
Request your trial
-
John Southwood v Buckinghamshire Council
...I shall do so.” 71 The Commercial Land approach was recently applied by Lane J in Atwill v New Forest National Park Authority [2023] EWHC 625 (Admin), [33]. Interpretation of planning permission 72 In UBB Waste v Essex County Council [2019] EWHC 1924 (Admin). [52]–[56], Lieven J said: “51......