Holding v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 09 December 2003 |
| Neutral Citation | [2003] EWHC 3138 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2003 |
| Docket Number | CO/3449/2003 |
[2003] EWHC 3138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Harrison
CO/3449/2003
MR J HOWELL QC & MR K LEIGH (instructed by Jennings Son & Ash) appeared on behalf of the CLAIMANT
MS N LIEVEN (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Tuesday, 9th December 2003
Background
This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against decisions of an inspector appointed by the first respondent, the First Secretary of State, contained in a letter dated 24th June 2003 relating to some enforcement notices that had been issued by the second respondent, Thurrock Borough Council, relating to the appellant's land at King's Farm, Parkers Farm Road, Orsett in Essex.
That property includes a large three storey house and gardens, various outbuildings and an adjoining airfield with a grassed runway. The appellant is the owner of four aircraft. The outbuildings include a barn in which one of the aircraft is kept, and a hanger in which the other three aircraft are kept. The hanger housing the three aircraft is the subject of two of the enforcement notices. Put shortly, the issue is whether the provision of the hanger is required for a purpose incidental to the enjoyment of the dwelling house as such.
It is, however, necessary first of all to explain briefly the history of the matter to explain the context in which that issue arose. On 15th July 1999 the second respondent served two enforcement notices on the appellant. The breach of planning control alleged in Notice 1 was a material change in use of the land from domestic use and agricultural use to domestic use and use as an airfield and for the storage of aircraft.
The breach of planning control alleged in Notice 2 was the laying of a hardstanding and concrete base and the erection of a metal framed building on the concrete base. That was the building which I have referred to as the hanger.
The appellant appealed against those enforcement notices. The inspector hearing that appeal allowed the appeal against Notice 1 under section 174(2)(d) of the 1990 Act on the ground that the use of the airfield had existed in materially the same way for the previous ten years. He also allowed the appeal against Notice 2, which he quashed and granted conditional planning permission for the works to which it related. The second respondent appealed to the High Court against those decisions, the appeal relating to Notice 1 being under section 289 of the 1990 Act and the appeal relating to Notice 2 being under section 288 of the Act. Both appeals were allowed by Newman J, and the Court of Appeal upheld his decisions.
Notice 1 was remitted to the first respondent for re-hearing and determination. The Inspector's decision to quash Notice 2 could not be challenged under section 288, and the second respondent did not exercise its right to challenge that decision under section 289, so Notice 2 remained quashed and of no effect. All that remained to be dealt with in relation to Notice 2 was the application for planning permission deemed to have been made under section 177(5) of the 1990 Act. As a result, the second respondent issued a further enforcement notice, Notice 3, on 10th March 2003 relating to the hanger and its hardstanding against which the appellant appealed.
A second public inquiry was held by a different inspector, Mr Norman, to re-hear the appeal relating to Notice 1, to determine the deemed planning application for the hanger and hardstanding in respect of Notice 2 and the appeal against Notice 3 relating to the hanger and the hardstanding.
The inspector allowed the appellant's appeal in respect of Notice 1 under section 174(2)(d) of the 1990 Act on the ground that the making of a material change in the use of the land to a mixed use for residential purposes and an airfield occurred more than ten years ago and was thus immune against enforcement action. There is no challenge to the inspector's decision relating to Notice 1. It is to be noted, though, that, in dealing with the appeal against Notice 1, the inspector had to consider in some detail the three components of the use of the airfield, which consisted of flying by the appellant, his family and friends for pleasure and business purposes; flying by others and the storage of their aircraft; and aircraft maintenance, sales and leasing.
Subject to a variation of the time for compliance with the notice, the Inspector dismissed the appellant's appeal against Notice 3, and he refused to grant planning permission for the applications deemed to have been made under section 177(5) of the 1990 Act in respect of Notices 2 and 3, both of which related to the hanger and hardstanding.
One of the grounds of appeal against Notice 3 had been under section 174(2)(c) of the 1990 Act, namely that there was not a breach of planning control. That involved consideration of whether the hanger and hardstanding were permitted development under Schedule 2, Part I, Class E and Class F respectively of the Town and Country Planning (General Permitted Development) Order 1995 ("the GDO"). A similar question arose on the deemed planning applications in respect of Notices 2 and 3 under the appellant's "fallback" argument, namely that, if planning permission were refused for the retention of the hanger, the appellant could and would relocate it within the curtilage of the dwelling house as permitted development under the GDO where its adverse effect on the openness of the Green Belt would be greater.
Thus it was that the inspector came to consider whether the hanger and hardstanding would be permitted development under the GDO when dealing with both Notices 2 and 3. Before I deal with the inspector's conclusions on that aspect, I should first refer to the relevant statutory provisions.
Statutory provisions
Under section 57 of the 1990 Act, planning permission is required for the carrying out of any development of land. Section 55(1) defines development as being the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. Section 55(2) specifies certain operations or uses of land which shall not be taken to involve development of land. Section 55(2)(d) specifies:
"the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such".
Under paragraph 3 of the GDO, planning permission is granted for the classes of development described as permitted development in Schedule 2 of the Order. Two of those classes are Class E and Class F.
Class E describes as permitted development:
"The provision within the curtilage of a dwellinghouse of any building … required for a purpose incidental to the enjoyment of the dwellinghouse as such …"
Class E then contains certain limitations on the permitted development. For instance, the building would not be permitted development if it would be within 5 metres of the dwelling house, if its height exceeded certain limits or if the total ground area covered by buildings within the curtilage, other than the dwelling house, would exceed 50 per cent of the total area of the curtilage.
Class F describes as permitted development:
"The provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such".
As the test is similar for Class E and Class F, I concentrate only, as the inspector did, on Class E relating to the hanger. In fact, the inspector found that the hanger and hardstanding were outside the curtilage of the dwelling house so that the appellant's appeal under section 174(2)(c) in respect of Notice 2 failed as it could not therefore be permitted development under the GDO. However, the inspector went on to consider the question whether the hanger would be permitted development if it were within the curtilage of the dwelling house because that was relevant to the appellant's fallback argument in respect of the deemed planning applications under section 177(5) relating to Notices 2 and 3. The issue, therefore, was whether the provision of the hanger within the curtilage of the dwelling house was required for a purpose incidental to the enjoyment of the dwelling house as such.
I turn next to the inspector's decision letter to see how he dealt with that issue.
Inspector's decision letter
Before coming to that issue, the inspector first dealt with the relevant background between paragraphs 10 to 17 of the decision letter, noting in paragraph 12 that the house was a large and imposing property on three floors with five bedrooms. He then dealt with the appeal against Notice 1 between paragraphs 18 to 43 of the decision letter. As I have already mentioned, that involved consideration of the three components of the use of the airfield, one of which was flying by the appellant, his family and friends for pleasure and business purposes. The inspector described that use in paragraph 21 as follows:
"Mr Holding owns four planes which are kept in the barn and in the hanger the subject of Notice 3. He uses them to fly to and from his other homes in Florida and Guernsey and for business trips to his companies' sites at Bedford and Nottingham and on Teesside. They are also used for pleasure flights. It was explained that the appellant uses aircraft in much...
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