Fiona Wingrove v Stratford-on-Avon District Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cranston |
| Judgment Date | 12 February 2015 |
| Neutral Citation | [2015] EWHC 287 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2263/2014 |
| Date | 12 February 2015 |
[2015] EWHC 287 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Cranston
Case No: CO/2263/2014
Celina Colquhoun (instructed by Jacqui Fulton Equine Law) for the Claimant
Paul Cairnes and Annabel Graham Paul (instructed by The Wilkes Partnership LLP) for the Defendant
Hearing dates: 4 February 2015
Introduction
In this judicial review the claimant challenges the decision of Stratford-on-Avon District Council ("the Council") to decline to determine her retrospective planning application. The Council claimed to act in accordance with section 70C of the Town and Country Planning Act 1990 ("the 1990 Act"). The claimant contends that the Council's decision under section 70C is flawed. There has been no previous case considering the ambit of this section.
Background
The claimant occupies Fox Farm, Bascote Heath, which lies in open countryside to the west of Southam, in Warwickshire. It extends over 3.2 hectares and consists of permanent pasture. There are a number of farm buildings, close to Welsh Road from which the farm is accessed. The farm is used for the claimant's equestrian business.
From 2004 the claimant has made a number of applications to the Council for planning permission. Five of them have been granted; in the main these concerned the use of the land for residential purposes. Three applications have been refused, one relating to extensions to a dwelling on the site, the other two concerning holiday accommodation.
The claimant is no stranger to enforcement action in relation to her occupation of Fox Farm. In 2005 an issue arose as to the stationing of caravans on the land and the sub-division of a dwelling to create two separate dwellings. Ultimately, an enforcement notice was issued in relation to the dwellings. It was complied with some time later. In 2006 the Council referred the claimant's tipping of work materials on the land to the Environment Agency, which prosecuted her and, on her pleading guilty she was fined £1250 at Rugby Magistrates Court. In April 2010, the Council prosecuted her at Leamington Magistrates Court for non-compliance with a planning contravention notice and in 2010 she was fined £250. Later in 2010 the Council became concerned about the change of use of the land and later issued an enforcement notice, with which the claimant complied.
In June 2008, the Council's planning manager, Clare Eynon and an enforcement officer, visited Fox Farm and took photographs showing the construction of a timber clad building with a new clay effect metal roof. In their view, the building was not, at that time, substantially complete.
In February 2009, the Council's enforcement officer visited the site and observed that the building was completed. On 8 September 2009, the Council served a planning contravention notice on the claimant in respect of the building, requiring answers to some 16 questions. The claimant did not respond within the 21 day time period. Having instructed a professional planning agent from DJC Associates, the claimant responded to the planning contravention notice on 21 January 2010 with a signed statement. Question 5 asked when residential use commenced for the two units comprising the building (called D and E); question 7, about the occupiers of the units; and question 13, when each unit was erected on the site. The claimant responded to question 5, in relation to units D and E with the date 1 September 2008. To questions 7 and 13 she replied that the relevant units (D and E) were occupied by members of her family and that the dates were August 2008 for the two.
The Council served an enforcement notice on the claimant on 19 June 2012. It alleged that, without planning permission, the claimant had erected a building in the position hatched black on the attached plan to provide two units of residential accommodation. The reasons given for issuing the notice were that the development was contrary to saved policies of the Stratford-on-Avon Local Plan ( 2006), STR.1, STR.4, COM.1, CTY.1, PR.1 and DEV.1. The enforcement notice required residential use of the building to cease and for it to be demolished. Under the notice, compliance was required within 9 months, in other words, by 20 April 2013. The notice set out in the Annex the right of appeal and drew attention to the effect of section 70C of the 1990 Act. The claimant did not appeal the enforcement notice.
The claimant applied for retrospective planning permission for the buildings as equestrian dwellings on 25 July 2012. The application was submitted on her behalf by DJC Associates. The covering letter referred to a report by Paul Rhodes, of Rhodes Rural Planning and Land Management which, the letter added, identified the need for two workers to live on the site.
After outlining the background and the claimant's business, Mr Rhodes's report stated that the reasons for the application were that the horses required daily monitoring, care and attention. During the breeding season the stock often required attention at short notice, and there were also emergencies and the need for security and bio-security. The report then referred to the National Planning Policy Framework ("the NPPF") and noted that Stratford-on-Avon's policy on agricultural workers' dwellings [CTY.6] had not been saved.
In its decision dated 14 August 2012 the Council declined to determine the application on the basis of section 70C of the 1990 Act.
In March 2013 the claimant lodged a second application for planning permission through Framptons, a planning consultancy. The application was for
"retrospective planning permission for the retention of two units of residential accommodation to serve the needs of the equestrian enterprise at Fox Farm with the accommodation subject to an occupancy condition".
Framptons stated that it considered the application to be materially different from that in the enforcement notice. The following month, the Council again declined to determine the application, invoking section 70C of the 1990 Act.
The claimant launched judicial review proceedings but these were compromised. The consent order of 26 February 2014 recorded the claimant's acceptance that section 70C was engaged, and the Council's acknowledgment that: (i) it failed to exercise the power under the section reasonably and in accordance with the relevant statutory purpose; and (ii) that it failed to give adequate reasons.
In re-determining for application, the Council agreed to consider and take into account Policy CTY.13, Equestrian Activities, if relevant. The consent order noted that the Council had obtained a report from an agricultural and equestrian consultant, about which the claimant had been ignorant until the pre-action protocol response. The report had advised that there was no need for additional accommodation at the site and that the existing accommodation met the needs of the equestrian business. The conclusion was disputed by the claimant.
The third application for retrospective planning permission, on 21 March 2014, was in the same terms as that quoted for the second application. In submitting it on the claimant's behalf, Framptons said in the covering letter that it was to be hoped that in consequence of its receipt,
"a decision to prosecute against non-compliance with the enforcement notice will be held over."
The application form itself stated that the building work had begun and was being completed on 1 January 2009. There was a detailed planning statement prepared by Framptons referring, in part, to policy CTY.13.
In a decision letter dated 4 April 2014, the Council declined to consider the application, citing its discretion under section 70C of the 1990 Act. It was not appropriate to determine the application.
"In making this decision, we have been mindful of the statutory purpose of the section to avoid applicants using the retrospective application process when they could and should have appealed the enforcement notice. In your case, the new application has not been made following pre-application discussions with the local authority and we do not believe it is a genuine attempt to overcome the previous planning objections that led to the enforcement notice. The relevant planning policy has not materially changed and the Council would still be considering whether to enforce against development of the type you have applied for in this location."
The decision letter was accompanied by an officer's report, which contained further reasoning. The report reiterated that if the claimant had wanted the planning merits to be considered it should have appealed the enforcement notice. It added:
"There has been no pre-application discussion on the merits of the development ahead of submitting the planning application. It is therefore hard to judge the applicant's motivation for making it; however, given that the notice now needs to be complied with in order to avoid criminal proceedings, it is likely that a strong motivation will be the applicant's desire to maintain occupation of the units, whilst avoiding further proceedings. The applicant may believe that submitting a planning application is likely to persuade the Council to put any further proceedings on hold whilst the planning merits are considered."
The report stated that the nature of the development in the application was largely the same as the matters in the notice, namely the...
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