Patrick Keenan v Woking Borough Council and Another

JurisdictionEngland & Wales
JudgeMrs Justice Lang DBE,Mrs Justice Lang
Judgment Date08 March 2016
Neutral Citation[2016] EWHC 427 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date08 March 2016
Docket NumberCase No: CO/3400/2015 & CO/3401/2015

[2016] EWHC 427 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/3400/2015 & CO/3401/2015

Between:
Patrick Keenan
Appellant
and
(1) Woking Borough Council
(2) Secretary of State for Communities and Local Government
Respondents

Jonathan Wills (instructed by Coyle White Devine) for the Appellant

Estelle Dehon (instructed by the Government Legal Department) for the Second Respondent

The First Respondent did not appear and was not represented

Hearing dates: 3 and 24 February 2016

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mrs Justice Lang DBE Mrs Justice Lang
1

The Appellant appeals, pursuant to section 289 of the Town and Country Planning Act ("TCPA 1990") against a decision of the First Respondent, by his appointed Inspector (Bridget M. Campbell), dated 22 June 2015, dismissing his appeals against two enforcement notices issued by Woking Borough Council ("the Council") on 20 March 2014 in respect of Blanket Mill Pig Farm, Goose Rye Road, Worplesdon, Surrey GU3 3RQ ("the Site").

History

2

The Site is about 5.6 hectares in size, and is situated partly within the Borough of Woking and partly within the Borough of Guildford. It is within the Green Belt and within a Site of Nature Conservation Importance.

3

The Site has an extensive planning and enforcement history. In 2002, the Council granted planning permission for change of use from agricultural to use for "the keeping of horses for private recreational purposes". In 2004, an Inspector found that the permission had been implemented and two horses were being kept on the Site.

4

In 2011, another Inspector also found that the use was not agricultural, and that the only livestock on the land was a single horse. He viewed the touring caravan, which he found was being "used as an office, for shelter, for making a cup of tea and to have access to a toilet" (paragraph 27). The Inspector addressed the "suggestion that either the caravan or mobile home had been used for residential purposes by the Appellant's son", but found that "nothing I saw at the time of my site visit would lead me to find that such a use is subsisting now" (ibid).

5

The Appellant had previously kept pigs on the Site, but was banned from doing so for four years, ending in September 2012. During the time the Appellant kept pigs, he applied to Guildford Borough Council for prior approval for a concrete track on the part of the Site that falls within the Borough of Guildford. Approval was granted in September 2007.

6

On 29 March 2012, the Appellant made an application for prior approval for agricultural or forestry development for a 260m track and 10m turning area. The application form asked if the proposed development was reasonably required for the purposes of agriculture and, if so, why. The Appellant stated:

"To allow transport of harvested trees during the winter from site of growth to market. Agricultural use of unit to move materials required for movement of stock pens and stock. Prevent transmission of diseases to stock of sheep and pigs."

7

At the inquiry, a different justification was given, because the Appellant admitted that, at the time of the application, no pigs were allowed to be kept on the farm. The Appellant's advocate stated that, in November 2011, 600 Christmas trees had been planted on the Site, and two sheep and some chickens were being kept (Decision Letter ("DL") 12).

8

The Council did not respond to the application for prior approval, which the Appellant took to mean that he could proceed with the works, and duly did so. The Council's case was that it had invalidated the application, as both a site location plan and a block plan were missing.

9

On 25 October 2013, the Council granted retrospective planning permission for, amongst other things, an access track to the north of the Site (DL 18). This was part of the track for which prior approval had been applied, and was found to be required to serve a store building (DL 18 footnote 4).

The enforcement notices

10

On 20 March 2014, the Council issued the two enforcement notices to which this appeal relates. In her decision letter, the Inspector referred to the two Notices as "Notice A" and "Notice B" respectively.

11

Notice A alleged an unlawful change of use to a mixed use of agricultural and residential use. It required the cessation of the mixed use, the removal of a number of items, including an Elan touring caravan, tents, two lorries and garden furniture said to facilitate the unlawful mixed use.

12

The stated reasons for issuing Notice A were that it appeared to the Council that the breach had occurred in the last ten years; the unauthorised use was not reasonably related to agriculture nor any of the other purposes considered to be appropriate within the Green Belt; the unauthorised residential unit was within 5km of the Thames Basin Heaths Special Protection Area; there had been a failure to provide for affordable housing despite the creation of a new residential unit; and planning permission should not be granted because planning conditions could not overcome those objections.

13

Notice B alleged the construction of a hard core track, and required the removal of the track and the restoration of the land to its former condition. It specified the parts of the track extending south-west and north- east from the permitted section of track.

14

The stated reasons for issuing Notice B were that it appeared to the Council that the development had occurred within the last four years; the track was not reasonably related to agriculture or any of the other purposes appropriate in the Green Belt and the track undermined the openness of the Green Belt and had a material detrimental effect on visual amenity.

The appeals

15

The Appellant appealed against the notices. Section 174(2) TCPA 1990 permits an appeal to be made on grounds including the following:

"(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;"

16

The Inspector held an Inquiry and conducted a site visit. She dismissed the appeals by a decision letter dated 22 June 2015.

Notice A

17

Ground (a): the Inspector declined to grant planning permission, giving substantial weight to the harm to the Green Belt.

18

Ground (d): the Appellant argued that the change of use had become immune to enforcement action. The Inspector dismissed this appeal.

19

Ground (f): the Inspector allowed the Elan touring caravan to remain on Site, but otherwise dismissed the appeal. The basis for this was that the removal of the other items at the site was necessary in order to achieve what she considered to be the purpose of the notice under s. 173(4)(a), namely to remedy the breach of planning control.

Notice B

20

Ground (a): the Inspector declined to grant planning permission, finding that the track was inappropriate development in the Green Belt, despite previous Inspectors having found that tracks were not an inappropriate form of development.

21

Ground (c): the Appellant argued under ground (c) that the track was lawful as permitted development under the Town and Country Planning (General Permitted Development) Order 1995 ("GPDO"), as he had made the application for prior approval under Part 6 of Schedule 2 of the GPDO and the Council had not responded to his application within the requisite 28 day period. The Inspector dismissed this ground, finding that no such planning permission arose in respect of the development described in the application notwithstanding the expiry of the 28 day period, as the track was not reasonably necessary for the purposes of agriculture.

Grounds of appeal

22

The Appellant was acting in person initially, and pleaded some 11 grounds in two separate notices of appeal. Both appeals have been consolidated. At an oral hearing, on 11 August 2015, Singh J. granted permission to appeal on three grounds only, namely:

i) Ground 1. The Inspector erred in her handling of the ground (f) appeal in relation to Notice A by failing to consider whether allowing more items to remain on the land was acceptable in planning and amenity terms, despite having the power to do so.

ii) Ground 2. The Inspector made a material error of fact in respect of the date on which Mrs Keenan left the country to live in Italy, and that this error gave rise to unfairness in respect of the ground (d) appeal against Notice A.

iii) Ground 3. The Inspector erred in rejecting the ground (c) appeal in relation to Notice B on the basis that the Appellant did not have planning permission to lay the track, as such permission was deemed to be granted by virtue of the Council's failure to respond to the application for prior approval within the...

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3 cases
  • Keenan v Woking Borough Council and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 Junio 2017
    ...No: C1/2016/1733 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT PLANNING COURT MRS JUSTICE LANG DBE [2016] EWHC 427 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Mr Jonathan Wills (instructed by Coyle White Devine) for the The First Respondent did......
  • Carol Susan Alderson v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 23 Junio 2017
    ...at [86]. 16 These principles apply mutatis mutandis to decisions on appeals against enforcement notices as Lang J confirmed in Keenan v Woking Borough Council [2016] EWHC 427 at [23] to [24]. The Decision Letter: 17 The Inspector set out the background to the appeals in the following passag......
  • N R Algul Ltd v Secretary of State for Housing and Local Government
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 4 Julio 2019
    ...State for Communities and Local Government [2014] 2 Estate Gazette Law Report 197 and to the decision of Lang J in Keenan v. Woking [2016] EWHC 427 Adminand her dictum at paragraph [39]), the position is that, where there is a ground (a) appeal, the inspector can grant permission either (i......

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