Hook v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 07 November 2018 |
| Neutral Citation | [2018] EWHC 3843 (Admin) |
| Docket Number | CO/3227/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 November 2018 |
[2018] EWHC 3843 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
David Elvin QC
(Sitting as a Deputy Judge of the High Court)
CO/3227/2018
and
Dr A Bowes (instructed by Leigh Day) appeared on behalf of the Applicant.
THE RESPONDENT did not appear and was not represented.
Mr N Westaway (instructed by the Director of Legal Services Surrey) appeared on behalf of the Interested Party.
THE DEPUTY JUDGE:
This is an application for permission under section 288 of the Town and Country Planning Act, permission having been refused on the papers by Lang J on 2 October 2018. The application was an appeal against a refusal for, primarily, retrospective development under section 73A of the Town and Country Planning Act 1990, and to a lesser extent for future development, i.e. a single-storey extension to an existing building.
The building that had been constructed was a dwelling, and the inspector described the description of the development in paragraph 3 of the decision letter as:
“The description of development given on the Council's decision and on the appeal form was ‘Erection of an occupational workers dwelling ancillary to use of the land for horticultural and agricultural purposes (retrospective), and erection of a single storey extension to form an enlarged bedroom’. It was agreed at the Hearing that this was the development for which planning permission was being sought, and therefore my decision is based on this description.”
No challenge is made to description, and indeed nor could there be since it is the description which appears in the appeal form lodged by the applicant, Mrs Hook.
The issues which were before the inspector were whether the proposed development was inappropriate development in the Green Belt for the purposes of the NPPF (2012 version) and Development Plan Policy; what the effect of the development was on the openness of the Green Belt and on the character and appearance of the area; and, if the development was inappropriate, whether the harm by way of inappropriateness and any other harm was clearly outweighed by other considerations so as to amount to very special circumstances which would justify it.
The issue that is brought before the court by Mr Bowes on behalf of the claimant is that the inspector, in refusing permission, firstly failed to grapple with the imposition of a condition imposing a restriction on the use of the building (i.e. the building as already constructed) and on the proposed extension for the use by an agricultural worker. He also challenges the decision, should that ground succeed, on the basis that there is a breach of fairness or otherwise unreasonableness because the reason that is given for the rejection of the condition only appears in a costs decision letter of the same date as the main decision letter, namely 20 June 2018, where it is dealt with in paragraph 9.
The application was made in part under section 73A(1) of the Town and Country Planning Act 1990 for “the planning permission which may be granted includes planning permission for development carried out before the date of the application” and I note, though the authority is not before me, that in the Sevenoaks case Sullivan J drew attention to the fact that the difference between section 73A and a normal planning application was that what was being sought was something which had already been constructed without planning permission or in breach of condition attached to a planning permission.
The inspector grapples with the main issue of appropriateness in the Green Belt at paragraphs 7 to 13 of his decision letter. He begins – correctly, in my judgment – at paragraph 89 of the NPPF by reciting that, “new buildings are inappropriate in the Green Belt unless they fall within the given list of exceptions,” of which of course one is a building for agriculture and forestry and, as he points out, it was not suggested that this was a building for forestry but for agriculture. He then stated as follows:
“8. I was directed to the case of Hancock v SSE (1988) 57 P & CR where it was stated that it is a matter of fact and degree, not law, as to whether a house for an agricultural worker is a building for agriculture. At the Hearing the discussions focussed on whether or not the dwelling is ancillary to the use of the land which, it was not disputed,...
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Alison Hook v Secretary of State for Housing, Communities and Local Government
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