Green v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 13 November 2013 |
| Neutral Citation | [2013] EWHC 3980 (Admin) |
| Docket Number | CO/4087/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2013 |
[2013] EWHC 3980 (Admin)
Mr Justice Cranston
CO/4087/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr J Wills (instructed by Kingsley Smith Solicitors) appeared on behalf the Appellant
Mr D Kolinsky (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Introduction
This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the decision dated 23 March 2012 of a planning inspector appointed by the Secretary of State for Communities and Local Government. The inspector had dismissed the appellant's appeal against an enforcement notice served by the local planning authority, West Oxfordshire District Council (the "Council"). The enforcement notice alleged a breach of planning control consisting of the erection of a stone clad building with a plain tiled roof without planning permission on land adjacent to 1-2 Waterworks Cottage, Worsham ("the property"). The appellant owns the property. The notice requires the demolition of the whole building.
The single ground of appeal is that the inspector erred in law in concluding that a 2006 planning permission had not been validly implemented and that therefore it did not remain extant at the date of his decision. Three sub grounds of appeal constitute the various errors which it is said the inspector made.
Background
On 30 November 2006, the Council gave planning permission for the erection at the property of a replacement garage and workshop to serve both cottages. The existing building was part of what had been a waterworks operated by Thames Water. The waterworks structures included chemical tanks. The appellant had purchased number 2 Waterworks Cottage in the 1990s and he said the replacement building was mainly to allow him to pursue his hobby of making clocks. He prepared the plans himself. Four conditions were attached to the planning permission.
The first was that the development should be begun before the expiration of three years. The second was that the external walls of the garage and workshop had to be constructed of stone, a sample of which was to be submitted and approved in writing by the Council before development commenced. The reason given was that the use of natural materials was justified in respect of the location of the property. The third condition was that the roofs of the building had to be covered with materials, a sample of which was to be submitted to and approved in writing by the Council prior to the commencement of development and the development was to be carried out in accordance with the approved details. The reason given for that third condition was to ensure the appearance of the roofs harmonised with the surroundings. And the fourth condition was that the garage and workshop accommodation could not be adapted and used for living purposes or used for commercial purposes. The reason given was to ensure adequate provision for off street parking was retained and to protect the residential amenities of the neighbouring properties.
During 2007, the appellant undertook various works, including the demolition of the existing structure and the building of trenches. At a fairly early stage, he deviated from the approved plans in the fenestration details and the internal layout of the new building. There were considerably more window openings than in the plans, including three at a high level in the gables. The north facing elevation had a set of patio style doors flanked by long windows. The numbers and disposition of the windows, coupled with the relatively shallowed pitched roof and overall size and height of the building, all served to give it a far more domestic appearance than the previously permitted more utilitarian design of the workshop and garage. Moreover, blockwork walls resulted in the partition of the internal space into several rooms shown as being workshops or for storage. That resulted in the formation of what was shown on the plans as a storage and garage area, which was incapable of use for garaging an average size vehicle because of its restricted depth.
In early 2010, the appellant submitted an application for planning permission to regularise the position on the ground. The application was originally described as being for "Changes to fenestration and internal walls to workshop at Worsham". But the Council amended that description as follows: "Erection or replacement building to provide workshops, storage and garage area (to allow changes to fenestration, eaves and ridge height and internal layout (part retrospective)."
The Council refused the application in April of that year. The appellant appealed that refusal and the Secretary of State appointed an inspector, Mr PJ Asquith. He refused the appeal in a decision letter of November 2010. The main issue in that appeal was the impact of the proposal on the appearance and character of the locality, having regard to both local and national planning policies. The building was in the Windrush River Valley in the Cotswold Area of Outstanding Natural Beauty. A policy of the Council indicated that the conservation and enhancement of the natural beauty of the landscape and countryside was to be given great weight in determining proposals, and that was reflected in national planning policy guidance in PPS7, Sustainable Development in Rural Areas. There were several other relevant planning policies.
The inspector took the view that the building, particularly by reason of its fenestration and the presence of fencing, had more of the appearance of a suburban bungalow, with no affinity to the design of traditional Cotswold rural buildings in that part of Oxfordshire. The inspector was unconvinced by the reasons the appellant gave for the design which, in the inspector's view, was poor, failing to conserve or enhance an Area of Outstanding Natural Beauty. He concluded that the proposal would be harmful to the character and appearance of the locality and would be tantamount to a dwelling house in a location where a new building would not normally be permitted.
Following the inspector's decision, the appellant made changes to the new building by filling in some of the windows and by removing the internal wall which was found to prevent the garaging of an average car. Nevertheless, along the rear elevation, the patio door arrangement and the location of other windows continued to provide the building with a domestic appearance, not dissimilar to that of a bungalow.
In April 2011, the Council issued an enforcement notice under section 172 of the 1990 Act. The breach of planning control was, without planning permission, the erection of a stone clad building with a plain tiled roof. The Council gave the reason for issuing the notice as the effect of the building on the character and appearance of the Area of Outstanding Natural Beauty and its setting, "by reason of its detailing and design, particularly the number, disposition and design of the fenestration which appears as a poorly designed structure." The requirement of the notice was to demolish the whole building and to remove the resulting rubble from the site.
The appellant accepted that the breach of planning permission, as alleged, had occurred. However, he appealed against the enforcement notice on grounds (a) and (f) of section 174(2) of the 1990 Act. In respect of ground (a) he contended that planning permission should be granted for the development. In respect of ground (f) he contended that the requirements of the notice were excessive and that lesser steps would overcome the planning objections.
In February last year, the Secretary of State appointed a planning inspector, Mr Kevin Nield, to hear the appeal. The appellant was represented at the inquiry by Mr Wills, who appeared before me on this appeal. Before the inspector, the appellant's submission was that, as the development under the 2006 permission was begun within the three year time limit stipulated by condition 1, that permission remained extant and lawfully capable of being built. The appellant's case was that what was built was no more harmful than that permitted by the 2006 permission. The continuing existence of the 2006 permission was said to be "a vitally important material consideration of this appeal." The argument was that, since the 2006 permission authorised a replacement garage and workshop, and the term "replacement" connotes demolition and construction, the development was begun within the three year time limit, at the point when demolition, work on the foundations, and the digging of trenches for drainage, occurred. That was before the material deviation from the 2006 permission.
The ambiguity in the appellant's plans as to the size of the building should be interpreted, it was said, in his favour. Comparing what was permitted under the 2006 permission with what existed on the site, the building as it stood was not materially worse in design and appearance terms than the drawings approved under the 2006 permission. If cure was required, this could be achieved by the imposition of a condition or under ground (f). For example, if the patio doors were thought to be incongruous, they could be filled in to match the existing stonework. If the material harm arising from the number, disposition and design of the fenestration were not thought capable of cure, the appellant submitted that the appeal should be allowed under ground...
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