Barnett v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 20 June 2008 |
| Neutral Citation | [2008] EWHC 1601 (Admin) |
| Docket Number | CO/1774/2007; CO/2129/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2008 |
[2008] EWHC 1601 (Admin)
Mr Justice Sullivan
CO/1774/2007; CO/2129/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Clive Newberry QC (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr Andrew Sharland and Mr Paul Greatorex (instructed by the Treasury Solicitor) appeared on behalf of the Respondents
(Approved by the Court)
Introduction
In a decision letter dated 2nd February 2007 (“the decision letter”) an Inspector, appointed by the first defendant, dismissed seven appeals (appeals A-G) made by the claimant against three enforcement notices issued by the second defendant (appeals A-C) and four refusals of planning permission by the second defendant (appeals D-G). The claimant appeals with permission against the Inspector's decisions in respect of appeals A and B under Section 289 of Town and Country Planning Act 1990 (the “Act”) and applies under section 288 of the Act to quash the Inspector's decisions in respect of appeals D-F. The Inspector's decisions in appeals C and G which related to a tree house are not challenged. The appeal and the application are resisted by the first defendant. The second defendant did not appear and has played no in these proceedings.
Factual background
On 4th May 1995 planning permission was granted on appeal, “for the erection of an estate manager's dwelling on land at Cowhouse Farm, Pitcroft Lane, Buriton in accordance with the terms of the application (No F.31097/008) dated 5 July 1994 and the plans submitted therewith, subject to the following conditions:”
There then follow a number of conditions which are not relevant for present purposes.
The plans accompanying the application included a landscaping plan, plans showing the elevation of the proposed dwelling and a location/site plan showing the location of the proposed dwelling of a scale of 1:5000 and the application site at the scale of 1:500.
In paragraph 4 of the decision letter the Inspector said that the approved drawings defined the permitted curtilage of the new dwelling which, when constructed, was called “Miscombe Manor” He described the appeal site as “a roughly rectangular area of land measuring about 65 metres by 35 metres lying between the 1995 curtilage and estate buildings to the north at Cowhouse Farm.”
The Inspector continued in paragraphs 5 and 6 of the decision letter:
“5. The appeal site has been laid out as a garden with a swimming pool, an adjoining building used for barbeques and storage of garden furniture, a tennis court with a 2.8m high chain link fence, a vegetable plot and an orchard.
6. The garden extension occupies part of an area that used to contain Nissen huts used as seasonal accommodation for hop-pickers until hop growing ceased on the estate in 1968. The huts were then used for livestock and agricultural storage but fell into disrepair and were progressively demolished leaving a neglected patch of land. Planning permission was granted in 1989 for a farm worker's dwelling to be erected on that site, but the permission was not implemented and it was superceded by the erection of Miscombe Manor immediately to the south. The appellant cleared and levelled the appeal site during the course of building Miscombe Manor.”
Appeal A was in respect of an enforcement notice (“Enforcement Notice A”) which allege a change of use of the appeal site to residential use. Appeal B was in respect of an Enforcement Notice (“Enforcement Notice B”) which alleged that the tennis court with chain link fence and the swimming pool and pool building had been constructed without planning permission. Before the Enforcement notices were issued the claimant had attempted to regularise the position by applying for retrospective planning permission for the continued use of the appeal site as a garden, the retention of the swimming pool and pool building and the retention of the tennis court and chain link fence. All three applications (applications D, E and F) were refused by the second defendant and the claimant's appeals against those refusals were appeals D, E and F respectively.
At the enquiry the claimant contended that the appeal site had ceased to be agricultural land and had become a garden in 1995, more than 10 years before the enforcement notices were issued, on 19 April 2006. It was submitted that the tennis court and chain link fence and the swimming pool and pool house were all permitted development within the curtilage of Miscombe Manor.
The Inspector concluded that the use of the appeal site for residential purposes as part of the curtilage of the dwelling house commenced less than 10 years before the enforcement notices were issued. He concluded that Miscombe Manor was substantially completed and occupied in 1998. In paragraphs 12 and 13 of the decision letter, he said:
“12. The Council's aerial photograph taken in 2000 does not in my view support the appellant's contention. In 2000 much of the appeal site appeared to be bare ground, and vehicle tracks can be discerned leading to an area of hummocky ground that looks as if it contained tipped materials. The condition of the land at that time can be distinguished from the appearance of the gardens within the permitted house curtilage. In my view the 2000 aerial photograph shows no evidence of residential garden use. The 2005 aerial photograph shows the extent of the transformation of the appeal site that subsequently occurred.
13. The appellant's statement asserts that the appeal site ceased to be agricultural and became a garden in 1995 but, apart from the contrary photographic evidence, this is also inconsistent with the statement elsewhere in the same document that the area in question was levelled and sown with grass seed and that 'this was satisfactorily completed by about the end of 1998.”
Those conclusions of the Inspector were not challenged in these proceedings.
The claimant further submitted that planning permission had been granted for an extension of the curtilage of Miscombe Manor beyond that permitted in 1995. The curtilage so extended included about half of the appeal site, including the whole of the swimming pool and pool building and part of the tennis court. The planning permission relied upon by the claimant for this submission is dated 16 December 1998. It was granted in response to an application dated 26 May 1998 in which the agent for Buriton Estates Ltd applied for planning permission for “Construction of four dormer windows in existing roof and extension to provide estate managers office and garages with games room above.”
The application site was “Miscombe Manor Pitcroft Lane Buriton. Question B1 in the application form asks:
“Is this a full application for alteration/addition to an existing single dwelling?” If the answer to that question was “Yes”, as it was, the applicant was instructed to answer only some, but not all, of the remaining questions on the application form. Thus, the claimant's agent was not required to, and did not, answer question B2, which asked whether the application was for full permission for new works/operations, change of use; question C2, which asked for the area of the appeal site; or question C7, which asked for information about the existing use of the site. Question C1 asked:
“Does the applicant own or control any adjoining land?” The answer “No” to that question was clearly wrong. The answer to question C12, which asked for information as to the materials to be used was “Please refer to drawings.” Question C13 asked for the plans/drawings (including location plan) enclosed with the application. Two plans were listed. 9813:2.01 and 9813:2.02 (drawings 01 and 02 respectively). The former showed the floor plans and the roof plans of proposed alterations at scale of 1:100, a site plan at scale of 1:500 and a location plan at scale of 1:5000. The latter showed the elevations of the dwelling as extended and altered to scale of 1:100 and incorporated a schedule of materials. The application was registered by the second defendant on 25 June 1998. At the beginning of October 1998, the defendant requested further information by telephone. There is no note of the request but the estate company's agent responded in a letter dated 5 October 1998:
“I refer to the above planning application and your recent telephone call requesting additional information in connection with the proposal.
I can confirm that there is at present no office accommodation within the estate, which in total extends to approximately 1,000 acres.
The office accommodation is required to enable the estate to be run in a more efficient and effective manner. The office would also provide an area where both employees and visitors to the estate can be seen without them having to use the house, as is the case at present. …”
Although not mentioned in the letter, there is no dispute that the letter was followed up by a plan which was received by the second defendant on 30 November 1998. The plan's title is “Extent of Land Holding Buriton Estates, Buriton, Petersfield” It shows the extent of the estate, edged by a blue line. Various parts of the estate are marked in manuscript “Owned”, “Sold”, “Rented by Woolf, “Shooting rights” et cetera, and there is a red line around an area which the Inspector concluded in paragraph 17 of the decision letter, “is the same as the 1995 permitted curtilage and does...
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