Glynn Howard Marshall v East Dorset District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 13 February 2018 |
| Neutral Citation | [2018] EWHC 226 (Admin) |
| Docket Number | Case No: CO/2364/2017 |
| Date | 13 February 2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2018] EWHC 226 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2364/2017
The Queen on the application of
Daniel Stedman Jones (instructed by Coles Miller Solicitors LLP) for the Claimant
Philippa Jackson (instructed by Legal and Democratic Services) for the Defendant
The Interested Party appeared in person
Hearing date: 1 February 2018
The Claimant seeks judicial review of the Defendant's decision notice, dated 13 February 2017, issued in response to the Interested Party's (“IP”) application for prior approval in respect of the proposed erection of an agricultural building (“the Building”), on land east of Pound Farm, at Hinton Martell, Wimborne, Dorset BH21 7HP (“the Site”), pursuant to schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development)(England) Order 2015 (“the GPDO”).
The Claimant resides at Pound Farm and will be affected by the proposed building, which the IP wishes to erect on a parcel of land which he owns. The Defendant is the local planning authority.
Gilbart J. granted permission to apply for judicial review on 3 October 2017. He ordered that “if the IP seeks to oppose the application for judicial review, he must file an Acknowledgment of Service, accompanied by his Grounds of Resistance, verified by a Statement of Truth within 14 days of this order. Any further witness evidence filed by him must be filed within 21 days of this order.” Gilbart J also ordered the Defendant to file and serve detailed grounds for contesting the claim and any written evidence within 21 days of the order.
At the commencement of the hearing, I refused the Defendant permission to rely upon a witness statement from Mr Lucas which had been filed and served on 1 November 2017. It comprised hearsay evidence of a telephone conversation with the IP on 25 October 2017, in which the IP added to and altered the information which he provided at the time of his application. I also refused the IP permission to rely upon a written “response” and documents relating to his ownership of the land which, in breach of Gilbart J's directions, he filed and served a few days before the hearing, giving the Claimant insufficient time to consider and respond to it. This added to and altered the information he provided at the time of his application. Regrettably none of the evidence he provided was verified by a statement of truth and he never filed an acknowledgment of service or grounds of resistance, verified by a statement of truth, as ordered by Gilbart J. I concluded that the IP's late material and Mr Lucas' witness statement were impermissible ex post facto evidence, which ought not to be taken into account by the Court, applying the principles helpfully set out by Green J. in Timmins & Ors v Gedling BC [2014] EWHC 654 (Admin), at [109] – [113].
Exceptionally, since the IP attended at the hearing, I allowed him to make oral submissions, despite not having filed an Acknowledgment of Service.
Facts
On 5 December 2016, the IP made an application to the Council for prior notification of agricultural development under Schedule 2, Part 6 of the GPDO on the standard form. He was assisted by a planning consultant.
In response to the question asking for “Site Address Details”, he stated “Pound Farm, Lane from Hill House Access to Junction with C24, Hinton Martell”. This was incorrect, as Pound Farm was the Claimant's home. The Site was more accurately described and shown on the accompanying plan and drawings as “Land opposite Pound Farm, Uppington, Wimborne BH21 7HP”.
The IP stated that the total area of the “proposed agricultural unit” was 11.4 hectares and the “parcel of land where the development is to be located” was “1 or more hectares”.
In response to the question “Would the proposed building be used to house livestock, slurry or sewage sludge?”, the IP said “no”. But in response to the question “Is the proposed building reasonably necessary for the purposes of agriculture”, the IP stated “yes” and added:
“The building is to be used a) to winter house 45 ewes and their lambs through the winter period and b) the storage of approximately 10 tonnes of potatoes which are grown on the adjoining land.”
The proposed use of the building to “winter house 45 ewes and their lambs through the winter period” contradicted the earlier response that the proposed building would not be used to house livestock.
The application form was accompanied by drawings showing the proposed layout and elevations of the Building. These drawings described the proposed development as a “General purpose barn”.
By virtue of Schedule 2, Part 6, Class A.2(d)(iii), the Defendant was required to make a determination as to whether prior approval was required within 28 days of the date on which the above application was received. This 28 day period expired on 8 January 2017.
The Officer's Report (“OR”) was dated 10 February 2017. It noted that the Building would “lie within 400m of the curtilage of a number of dwellings including Pound Farm and Uppington Cottage to the west and Broadview, Berjon, Ivy Cottage and Lichens to the south which are protected buildings”.
The report set out the relevant provisions of paragraphs A.1(i), A.2(1)(a) and paragraph D1.3 of the GPDO, prohibiting and restricting the accommodation of livestock in buildings within 400m of protected buildings. It noted that:
“The application form states that the building will not be used for the keeping of livestock but then notes the use of the building to winter house ewes and their lambs.”
“The applicant's agent has confirmed, when this matter was queried, that the use of the building for ewes and lambs would be restricted so as to meet this condition.”
In the ‘conclusions’ section, the report stated:
“The Council failed to respond to the Prior Notification application within the 28 day timeframe from the receipt of information necessary to validate the application so no further details can be required. The proposal will only meet the permitted development criteria if the use by livestock is limited to the activities identified in Class D1.3.”
The Defendant sent the IP a decision notice dated 13 February 2017. It provided as follows:
“ Town and Country Planning Act 1990
Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended)
Application Reference no:
3/16/2816/PNFAG
Applicant's Name:
Mr Brian Pitman
Location:
Pound Farm, Lane from Hill House Access to Junction with C24, Hinton Martell, Wimborne, Dorset, BH21 7HP
Proposal:
Erection of a new agricultural building
East D orset District Council has considered this application and has determined that prior approval is not required in relation to the siting and appearance of the development, as described above, and in accordance with the submitted plans and other supportive documents.
The development, therefore, constitutes permitted development in accordance with the provisions of Part 6 of the Town and Country Planning Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) as is subject to the standard conditions:
The following informative notes are drawn to the applicant's attention:
The 28 days within which the Local Planning Authority can request the submission of details of the siting, design and external appearance of the building for Prior Approval under Part 6 Class A2(2)(i) has expired.
The applicant is advised that as the building would be siting within 400m of a number of protected buildings its use for the keeping of livestock, other than in accordance with Schedule 2, Part 6, Class A (A.1(i) of the Town and Country Planning (General Permitted Development) Order 2015 as amended and planning consent would be required.”
The IP carried out some preparatory work on construction of the Building, but ceased in the light of this judicial review challenge.
Statutory framework
By section 57(1) of the Town and Country Planning Act 1990 (“TCPA 1990”), planning permission is required for the carrying out of development. By section 58(1)(a), planning permission may be granted by a development order made by the Secretary of State. By section 60, planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order, including conditions as to prior approval.
Article 3(1) of the GPDO provides that planning permission is granted for the classes of development described as permitted development in schedule 2. By article 3(2), any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in schedule 2.
Part 6 of schedule 2 relates to agriculture and forestry.
Class A grants permission for the following development:
“ A Permitted development
The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of—
(a) works for the erection, extension or alteration of a building; or
(b) any excavation or engineering operations,
which are reasonably necessary for the purposes of agriculture within that unit.”
However, the scope of the permission is limited by paragraph A.1. which provides, so far as material:
“ A.1. Development not permitted
Development is not permitted by Class A if –
……
it would consist of, or include, the erection or construction of, or the carrying out of any works to, a building, structure or an excavation used or to be used for the accommodation of livestock or for the storage of slurry or...
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