Chesterton Commercial (Bucks) Ltd v Wokingham District Council
| Jurisdiction | England & Wales |
| Judge | Martin Rodger |
| Judgment Date | 13 July 2018 |
| Neutral Citation | [2018] EWHC 1795 (Admin) |
| Date | 13 July 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5156/2017 |
[2018] EWHC 1795 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
UPPER TRIBUNAL JUDGE Martin Rodger QC,
(Sitting as a Judge of the High Court)
Case No: CO/5156/2017
Sasha White QC and Anjoli Foster (instructed by Richard Max & Co LLP) for the Claimant
Saira Kabir Sheikh QC (instructed by Select Business Services: Legal Solutions) for the Defendant
Hearing date: 12 June 2018
Introduction
Section 70C(1), Town and Country Planning Act 1990 provides that:
“A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.”
A “pre-existing enforcement notice” is one issued before the related application for planning permission was received by the local planning authority (section 70C(2)).
The issues in this application for judicial review are whether the discretion in section 70C is engaged on the facts and, if it is, whether the defendant's refusal to consider an application for planning permission made by the claimant was a lawful exercise of that discretion.
Permission to bring the application was granted on the papers by Mr David Elvin QC on 20 December 2017.
The claimant is a company, Chesterton Commercial (Bucks) Ltd. It is represented in the application by Mr Sasha White QC and Miss Anjoli Foster.
The claimant is the owner of land and a house on the banks of the River Thames in Henley which I will describe shortly. The land has been the subject of unauthorised development by the claimant, followed by a number of applications for retrospective planning permission, which have been met by refusals and enforcement action. The application for planning permission which is of particular relevance to these proceedings was made on 7 August 2017. As described in the application itself, it was for the creation of a balcony to link a garage and a boathouse at first floor level on the claimant's land.
By a decision made on 27 September 2017 the defendant, Wokingham Borough Council, declined to determine the claimant's application, relying on section 70C of the 1990 Act. It is that decision which is challenged in this application. The defendant is represented by Ms Saira Kabir Sheikh QC and resists the application.
At the commencement of the hearing I gave permission for the claimant to rely on a witness statement of its planning consultant, Mr Neil Boddington, explaining some features of the application of 7 August 2017 and the plans which had accompanied it which had already been commented on in evidence by the defendant's planning officer, Mr Jason Varley.
Factual background
I take the facts largely from the claimant's statement of facts and grounds, supplemented by a decision given on 13 February 2017 by Mr Chris Preston, an inspector appointed by the Secretary of State to consider a number of appeals by the claimant and associates in relation to development on the site.
The claimant is the freehold owner of a Grade II listed cottage known as Bird Place Cottage (or sometimes Stonebridge Cottage) and its surrounding gardens and outbuildings which adjoins Henley Bridge, at Henley on Thames in Berkshire. The land is roughly rectangular, directly adjacent to the River Thames on its eastern bank, and is part of the green belt. It is clearly visible from the western bank of the river and from the bridge itself, and occupies a prominent position in the Remenham and Henley Bridge Conservation Area. It immediately adjoins the Henley Royal Regatta building to the north, and lies a few lengths from the Leander Club boathouse.
Bird Place Cottage is said to be the claimant's family home, but as the claimant is a limited company, I assume it is the home of its principal director Mr Grahame Bryant. The Cottage itself is in the centre of the site, with gardens to the south.
Along the northern side of the site stands a large building comprising three connected sections. At the western end of this building, fronting directly onto the river, is a large boathouse on two floors, with living accommodation at the upper level. At the eastern end of the building is an attached garage, also on two floors, with office and storage accommodation over. The boathouse and garage are of traditional appearance, fitting to their riverside location, with timber facades and tiled roofs. A third, smaller section completes the range and links the boathouse and the garage. This is a single-storey, flat roofed, storage building, of timber, glass and brick, the roof of which also provides a terrace or viewing platform and an outdoor seating area, and the whole of which is structurally connected to, and links, the boathouse and the garage at both ground and first floor level.
Before the construction of the current range by the claimant in 2015–16, a smaller boathouse and a separate detached garage were present in the same general location. These were demolished to make way for the new building. In aggregate volume and floor area, they were substantially smaller than the new building.
The claimant's case is that the boathouse and garage elements of the new building were built in accordance with planning permissions, but it acknowledges that the link building was not. The defendant disputes the first part of that assertion and says that the whole of the new range was built without planning permission.
The planning inspector found that there had been three planning permissions for outbuildings on the claimant's land, which remained extant. Two of these related to the construction of a separate garage with living accommodation above and were granted in 2014. The third related to the demolition of the original boathouse and the construction of a self contained replacement boathouse. The external dimensions of the boathouse and garage elements of the building which the claimant has actually constructed were found by the inspector to be in line with the dimensions of the approved boathouse and garage scheme.
Principally because of the presence of the link building, for which no permission has ever been granted, the new building is larger in terms of volume and footprint than the approved garage and boathouse. The link building has a floor area of 33.6 m 2 and increased the permitted volume of development represented by the boathouse and the garage by 12.8%. Moreover the completed structure is a single building or range of attached buildings, as opposed to two detached buildings with space in between. The link element projects outwards into the garden and is not set back behind the side elevations of the garage and boathouse.
The detached garage and boathouse in their approved form each provided for access to accommodation on the upper floor by means of separate external staircases (one for each building) situated in the space between the two buildings which subsequently came to be occupied by the link building. When the single new building was constructed, access to the upper floors over the garage and boathouse elements was by a single, more prominent, external staircase flanking the building and leading to the terrace or balcony on the flat roof of the linking section, from which doors open into the first floor accommodation at each end of the structure.
On 23 May 2016 the claimant applied for retrospective planning permission described as being for “erection of boathouse, garage and store”. It may be that the application was made in response to a threat of enforcement proceedings by the defendant, but in any event, on 22 June 2016, the defendant issued an enforcement notice. On 25 July 2016 it refused the application for retrospective planning permission.
The terms of the enforcement notice are important. The breach of planning control alleged was “without planning permission the erection of an outbuilding, brick wall, gates and gate posts (“the Building”) in the approximate position shown” on an attached plan. The plan showed that the “outbuilding” against which the notice was directed was the whole of the new range comprising the boathouse, the garage and the structure linking the two. The brick wall, gate and gatepost also mentioned in the notice had been erected by the claimant at the same time as the Building.
A number of reasons were given by the defendant for issuing the notice but only one was upheld by the inspector, namely that the Building was an unsustainable form of development which by virtue of its size, scale and massing was inappropriate in the green belt and had a detrimental impact on openness.
The remedial action required by the notice was that the claimant must demolish the Building, excavate the slab and remove all resultant materials from the land within 3 months of 25 August 2016.
The notice was one of three enforcement notices served on the claimant on the same day. The others required the removal of an extended wet dock and the removal of two single-storey extensions to Bird Place Cottage itself, which did not conform to permissions granted by the defendant.
The claimant' director, Mr Bryant, appealed against all three enforcement notices and against the refusal of the application for retrospective planning permission for the retention of the Building. The appeals were considered together at a hearing and the Inspector gave his decision on 13 February 2017.
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