David Saxby v The Secretary of State for The Environment and Another
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 29 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0429-5 |
| Date | 29 April 1998 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/3342/97 |
[1998] EWCA Civ J0429-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Lockhart Mummery QC
CO/3342/97
and
MR C NEWBERRY QC and MS S NABIJOU (judgment only) (Instructed by Messrs Gardner Weller, London, SW1) appeared on behalf of the Applicant.
MS N LIEVEN and MS A OAKES (judgment only) (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
In this application Mr. Newberry Q.C. applies on behalf of the Applicant to quash a decision letter dated 8th August 1997 given by an Inspector on behalf of the Secretary of State for the Environment whereby he dismissed an appeal against the decision of Westminster City Council to refuse planning permission in respect of an application for the "placement" of 2 dovecotes at 19C Hyde Park Gardens, London W2. The planning application had proposed the placement of these 2 dovecotes in the garden area attached to the residential flat at the Applicant's address. The Council had refused the application on the grounds of the smells, general disturbance and nuisance which the keeping of doves would cause to the detriment of residential amenity in the locality.
An appeal was conducted by way of written representations. The Applicant emphasised that the Council raised no objection on grounds relating to the character or appearance of the conservation area within which the premises fall, nor to the character of the listed building of which the flat forms part. In his representations, he contended that the objection is not against doves per se; the real question was how many doves consistent with the maintenance of residential amenity should occupy the dovecotes. If there were objection to the number of doves, this could be regulated by means of a condition.
A substantial part of the representations comprised a claim that planning permission was not required for the proposal. Three grounds were put forward for this contention. First, that the proposal constituted permitted development by virtue of the Town and Country Planning (General Permitted Development) Order 1995. Second, that as a matter of fact and degree, no development was involved. Third, that the proposals constituted the use of land within the curtilage of a dwellinghouse incidental to the enjoyment of the dwellinghouse as such, and hence did not constitute development: Town and Country Planning Act 1990, section 55(2)(d).
Having considered the written representations, the Inspector undertook a site inspection. As his decision letter indicates, that inspection revealed that both dovecotes had already been constructed, and one of them was in position in the ground. In relation to the submissions made as to the need for planning permission, he said this:—
"There is disagreement between your advisers and the Council concerning the need for planning approval for the dovecotes. The need for planning permission is a matter of law, and I am considering the appeal on its planning merits".
In the final paragraph of his decision letter he stated:—
"Your attention is drawn to section 64 of the Town and Country Planning Act 1990, which makes provision for applying to the local planning authority to determine whether an application for planning permission is required".
As I shall describe below, the reference to section 64 was misplaced, that section having been repealed in 1992 by the Planning and Compensation Act 1991.
So far as the merits of the case were concerned, the Inspector considered that the main issue in the case was the effect on the living conditions of the residents of nearby properties in respect of nuisance arising from fouling by the birds accommodated in the dovecotes. He records that at the time of his site inspection, the area beneath the dovecote was considerably fouled, and there was evidence of bird droppings in the Applicant's garden and in the surrounding area. He saw some of the white doves perched on the balustrade of a neighbour's balcony. He was of the view that
"While the situation with the relatively few birds being kept at present does not constitute a major nuisance, this would not be the case if the number of birds increased materially. In that event the nuisance resulting from droppings would be likely to be considerable".
His main findings on the merits were as follows:—
"11. Given the situation of the appeal site in very close proximity to Hyde Park and the adjoining communal garden, as well as other gardens and squares in the vicinity, the likelihood is that there are other birds who make use of the gardens and buildings in the vicinity of the appeal site. Indeed, in addition to scattered white feathers—in all likelihood from the doves—there were feathers of different colours in the communal garden. While there is no substantial evidence that all the bird droppings in the nearby areas have been caused by doves from your client's garden, the provision of nesting facilities and food for the doves is clearly an attraction to other birds, thus increasing the likelihood of nuisance.
12. The representations submitted on behalf of your client express willingness for only one dovecote to be provided, in order to restrict the number of birds and their effect on neighbouring properties. The Council has drawn my attention to the dismissal of an appeal for a pigeon loft in the grounds of a dwelling. In that case the Inspector referred to a sizeable number of pigeons. If the number of birds were kept to only a few, the level of nuisance would be correspondingly less, and I do not consider that the same criterion would apply. However, the dovecote that I saw is of a substantial size, and is clearly able to accommodate a considerable number of birds. I do not consider that allowing one dovecote only would ensure that the number of birds could be kept to an acceptable minimum.
13. I have had regard to your client's preparedness for the number of birds to be limited to 6 by the imposition of a condition on planning permission. In paragraph 26 of Circular 11/95 it states that a condition should not be imposed if it cannot be enforced. Paragraph 27 adds that a condition will sometimes be unenforceable because it is in practice impossible to detect a contravention. It seems to me that there would be considerable difficulties in confining the use of the dovecotes to your client's own birds at all times, and for this to be determined. There seems to me to be the likelihood that they may be used by other birds, even for limited periods of time. I have therefore come to the view that the imposition of a condition restricting the number of birds in order to keep the nuisance to an acceptable level, would not comply with the guidance in the Circular".
Mr. Newberry made submissions under two main headings. First, that there was an error of law in the failure to determine whether planning permission was required. Second, that there was a series of errors in the Inspector's consideration of the merits.
Lack of determination as to whether planning permission required
Mr. Newberry relied on two well known authorities for his proposition. In Wells v. Minister of Housing and Local Government [1967] 1 WLR 1000 a planning application was submitted for the erection of a concrete batching plant. The local planning authority responded by letter stating that the proposed plant was permitted development, and that it was not therefore proposed to take further action on the application. It was held by a majority of the Court of Appeal that the application for planning permission contained an implicit invitation to make, and there was made, a valid determination under section 43 of the Town and Country Planning Act 1962. At page 1008 Lord Denning M.R. said:—
"Another way of putting it would...
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