Clive Evans v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 05 December 2014 |
| Neutral Citation | [2014] EWHC 4111 (Admin) |
| Docket Number | Case No: CO/2164/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2014 |
[2014] EWHC 4111 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Cameron QC
(sitting as a Deputy High Court Judge)
Case No: CO/2164/2014
Mr Jeremy Pike (instructed by Forsters LLP) for the Claimant
Ms Clare Parry (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 19th November 2014
Neil Cameron QC:
Introduction
This is an application for an order pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of 1 st April 2014 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector dismissed the Claimant's appeals against decisions by the Second Defendant, Aylesbury Vale District Council ("the Council") to refuse to grant planning permission ("Appeal A") and to refuse to grant a lawful development certificate ("Appeal B"). There is no challenge to the inspector's decision on Appeal B.
The Claimant relies upon two grounds of claim. In both grounds the Claimant contends the inspector erred in law in his interpretation of the provisions of the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO").
i) Under ground 1 it is contended that the inspector misinterpreted paragraph A.2(c) of Class A of Part 1 of Schedule 2.
ii) Under ground 2 it is contended that the inspector misinterpreted Article 3(5).
The Background Facts
The Claimant is the owner of a property known as Coppice Cottage, Ringshall Road, Berkhamsted, Hertfordshire ("the Property"). The Property consists of a detached dwelling together with a U shaped range of outbuildings set in substantial grounds to the north of the village of Ringshall. The Property lies within an area of outstanding natural beauty ("AONB") and within the Metropolitan Green Belt. As the Property lies within an AONB it is on Article 1(5) land for the purposes of the GPDO.
The Claimant carried out works to extend the rear of the Property at ground and first floor levels. Following the carrying out those works the Claimant, on 18 th October 2011 made an application for retrospective planning permission for part two storey, part single storey side and rear extensions. The planning application was refused by the Council by a decision notice dated 18 th May 2012. The Claimant appealed to the First Defendant. The First Defendant appointed an inspector (Mr. David Fitzsimon) to determine the appeal. The appeal was conducted by way of the written representations procedure. By a decision letter dated 21 st August 2012, the inspector dismissed the appeal. The inspector's decision was quashed by an order of the High Court dated 24 th June 2013, and remitted to the First Defendant for reconsideration. Mr Fitzsimon's decision was quashed by consent on the ground that he ought to have considered whether the Claimant's proposed development benefitted from permitted development rights and that his failure to do so rendered the decision unlawful.
The First Defendant appointed a different inspector (Mr. R. Evans) to determine the planning appeal under section 78 of the 1990 Act which had been remitted to the First Defendant for reconsideration, and also to determine an appeal pursuant to section 195 of the 1990 Act against the Council's refusal to grant a lawful development certificate in respect of a proposed extension to the front of the Property.
Mr R. Evans conducted a hearing on 4 th February 2014 and made a site visit on 5 th February 2014.
The Claimant argued that the extension, or most of it, benefited from permitted development rights. In the event that the extension was held not to have been granted planning permission by virtue of the fact that it was permitted development, the Claimant argued that the extent of development granted permission as permitted development was a 'fall back' and therefore a material consideration to be taken into account when determining whether to grant planning permission. The Claimant's argument, is set out in a document entitled "Further Representations Following an Appeal Under Section 288 of the Town and Country Planning Act 1990" which included the following:
"4. The Appellant has constructed a first floor rear extension which does not extend beyond what was believed to be the original single storey lean to and a single storey extension of 4m depth from the outer wall of the lean to. There is no first floor extension above this 4m extension and the LPA has acknowledged that these works were carried out in good faith being permitted development …
……..
6. …………….On land within an AONB, the enlarged part of the dwelling house may, if it is only one storey, extend up to 4m beyond the wall of the "original" dwelling house and may be up to 4m in height. The "enlarged part" which is 4m in depth is only a single storey extension extending from the rear wall of the original lean to and therefore is permitted development. It does not have a floor above it and so cannot be considered to be a two storey extension – see attached correspondence with the Council and the planning lawyer's advice given to Council (Doc 3).
7. With regard to the first floor extension, this is directly above the original lean to and does not extend beyond the rear wall of the original lean to as outlined in the red line drawing. Article 2(c) of the Schedule 2 to the Town and Country Planning General Permitted Development Order 1995 (sic) provides that an enlargement of more than one storey should not extend beyond the rear wall of the "original dwellinghouse" and therefore is permitted development. ……………….
…………….
10. The Appellant submits, for the reasons set out at paragraphs 7–9 above, that the extension which has been constructed benefits from Permitted Development rights or alternatively that the majority of the development benefits from permitted development rights and that what has been constructed is not materially different from that which would be designated as permitted development and therefore planning permission should be granted.
11. In addition to the rear Permitted Development rights, the property also benefits from Permitted Development rights which allow the Appellant to construct a substantial two storey extension to the front of the property, as shown at Doc 7. ………………..
13. If planning permission is granted for the extension which has been constructed the Appellant would be prepared to forego his right to exercise his permitted development rights to the front of the building. ……………..
…………….
15. In addition the Appellant submits that the planning permission should be granted as what has been constructed is significantly more appropriate to the Green Belt than what he could construct to the front and rear of the property under permitted development rights which is the fall back position.
……………."
The Council's argument before the inspector (as set out in a document entitled "Fall back regarding rear extensions") was that for the purposes of the limitation imposed by paragraph A.2(c) of Class A of Part 1 of Schedule 2 to the GPDO, when considering an extension at first floor level, the rear wall of the original dwelling house from which a measurement is to be taken is the first floor rear wall. As a result the Council contended that on Article 1(5) land paragraph A.2(c) prevents all rear extensions of more than one storey.
The Inspector's Decision
The inspector's decision was set out in a decision letter dated 1 st April 2014.
The decision letter included the following:
5. The previous Inspector's decision was set aside by consent on the basis that he
"ought to have considered whether the Claimant's proposed development benefitted from permitted development rights and failure to do so rendered the decision unlawful." It was however accepted that not all of the works shown in the above plans could be permitted development, whether under Class A,
Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) 1995 (as amended) ["the GPDO"] or otherwise. The works carried out to date, at least to the house, are indisputably part of a single building project. As a preliminary issue therefore, it is necessary to determine not how much of the full proposal amounts to permitted development, but rather, the extent of any permitted development rights available before the works began, having regard to the relevant provisions of Class A. Put another way, those rights would constitute the 'fallback' position, meaning what the Appellant would have been able to do lawfully without having to seek permission and strictly, what would thus be lawful with any unlawfully erected extensions removed.
6. The Department for Communities and Local Government issued Technical Guidance ["the TG"] on the permitted development provisions in August 2010, revised most recently in October 2013. In applying those provisions, the first question is not 'what did parliament intend as restrictions?' but 'what do the relevant parts of the GPDO say and what do they mean?' The meaning of any particular provision is ultimately a matter for the courts. The TG is not a statement of policy where a planning judgment is involved. It is rather the Secretary of State's interpretation and application of a statutory instrument, certainly overseen and approved by Parliament but itself originating from his own department. Comfortably or not, as I stand in his shoes when determining an appeal, his...
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