R Allsop v Derbyshire Dales District Council

This is an appeal by way of case stated from the Derby Crown Court which concerns the proper construction of Section 215 of the Town and Country Planning Act 1990.

The appellant Mr Allsop is a farmer at Brassington, a village in the Derbyshire Dales. His farm includes a field, one corner of which Mr Allsop has in recent years used for storing his agricultural trailers. The respondent to this appeal is Derbyshire Dales District Council ("the council").

On 13 August 2008 the council wrote a letter to Mr Allsop which referred in the heading to the Town and Country Planning Act and to "unsightly trailers situated in a field", that being a reference to the field I have already mentioned. The letter stated:

"The council has received complaints regarding a trailer that has been parked on your land in Brassington. The council considers that the storage of vehicles on this site has an adverse effect on the amenity of the area and this has been confirmed by council officers who have visited the area. In these circumstances, I must ask you to undertake the following works within 21 days from the date of this letter, to abate the nuisance and bring the property back to an acceptable standard:

cease the use of the land for storage of vehicles, trailers.

I advise that failure to comply with this request will leave the council with no option but to consider action pursuant to Sections 215 to 219 of the Town and Country Planning Act ….. "

Enclosed, in what was said to be "a first step towards instigating formal proceedings", was a requisition for information.

When Mr Allsop received this letter he instructed solicitors. They replied to the council on his behalf on 26 August 2008. They produced the information which had been requested by the council but also stated that they were instructed that the only trailers in the field were used for the purposes of agriculture. They further said:

"Since the parking of these agricultural trailers is considered to have an adverse effect on the amenity of the area, our client would be prepared to erect an agricultural building on the land to facilitate the storage of such agricultural implements out of sight of neighbouring properties."

The council's head of Planning Services Mr Wilson responded on 1 September 2008 confirming that the Local Planning Authority maintained that the vehicles and trailers situated at the location "continue to have an adverse effect on the amenities of the area". As regards the suggestion of erecting an agricultural building, he said that any application to erect such a building would be treated on its own merits.

That letter was followed by the service of a notice by the council under Section 215 of the Act. The notice was dated 27 October 2008 and was served on 6 November 2008. It is the effect of this notice which is in issue on this appeal. The notice was addressed to Mr Allsop, and stated as follows:

"1 This is a formal notice which is served by the council under Section 215 of the above Act because it appears to them that the amenity of a part of their area is adversely affected by the condition of the land described below.

2 The land to which this relates —

The land edged red on the attached plan being land at Brassington, Derbyshire.

3 What you are required to do —

The council requires the following steps to be taken for remedying the condition of the land:

(1) cease the use of the land for storage of vehicles and trailers

4 Time for compliance —

Step 1 above to be complied with in full within 21 days of the date on which this notice takes effect.

5 When this notice takes effect —

This notice takes effect on Friday 28 November 2008."

Section 215 of the Act, under which the notice was purportedly served, provides:

"(1) If it appears to the local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section.

(2) The notice shall require such steps for remedying the condition of the land as may be specified in the notice to be taken within such period as may be so specified."

By Section 216 (2) of the Act -

"(2) If any owner or occupier of the land on whom the notice was served fails to take steps required by the notice within the period specified in it for compliance with it ….. "

he is guilty of a criminal offence and liable on summary conviction to a fine.

Section 217 (1) provides for a right of appeal to the Magistrates' Court against a Section 215 notice on any of the following grounds:

"(a) that the condition of the land to which the notice relates does not adversely affect the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(b) that the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III;

(c) that the requirements of the notice exceed what is necessary for preventing the condition of the land from adversely affecting the amenity of any part of the area of the local planning authority who served the notice, or of any adjoining area;

(d) that the period specified in the notice as the period within which any steps required by the notice are to be taken falls short of what should reasonably be allowed."

Sub-section (5) provides:

"(5) On the determination of such an appeal the magistrates' court shall give directions for giving effect to their determination, including, where appropriate, directions for quashing the notice or for varying the terms of the notice in favour of the appellant."

Section 218 of the Act makes provision for a further appeal against a decision of the Magistrates' Court to the Crown Court.

Mr Allsop appealed against the notice served on him to the Magistrates' Court. His appeal was supported by a witness statement dated 22 December 2008 in which it was argued that parking agricultural trailers was a use of the land in question which was not in contravention of Part III of the Act, that the condition of the land to which the notice related was attributable to that use and that he was therefore entitled to appeal under Section 217 (1) (b) of the Act.

In response, the council served a witness statement from the head of Planning Services, Mr Wilson, dated 16 January 2009. In that statement Mr Wilson said at paragraph 5:

"5 I must say that at the initial stage my view was very much similar to the appellant's submission that the vehicles were likely to be agricultural in nature and I agree that were this case as it appeared on a prima facie basis then the council could not have taken action."

However Mr Wilson went on to explain that the council's complaint related to what he described as a "lurid face" painted on the side of one particular trailer which was parked alongside the wall of the field that faced directly into the Brassington conservation area. At paragraph 10 Mr Wilson said:

"10 The terms of the notice required the removal of vehicles and trailers from the area as the harm to the amenity arose from the storage of vehicles in that place facing directly into a conservation area. The council would not seek to require the appellant to livery his vehicles in a specific way and took the view that the removal of the vehicles from that location was the least onerous way of ensuring that the harm to the amenity was resolved."

Mr Allsop subsequently made a further witness statement in which he said that he had not been aware that the council's complaint was directed at the face painted on the side of the trailer until after a telephone conversation had taken place between his solicitor and the solicitor for the council on 15 January 2009. He further said that he would have no hesitation in over-painting the face and if anybody at any time had asked him to do so he would have done that earlier. He stated that on the next day —in other words 16 January 2009 —he did in fact take some paint and paint over the face, thus addressing the matter about which the council was concerned.

Despite this, the dispute continued because Mr Allsop took the view that there had been no valid legal basis for the notice served on him whereas the council insisted that there was. Mr Allsop's appeal against the notice was heard by the Chesterfield Magistrates' Court which, on 4 March 2009, dismissed the appeal. Mr Allsop then exercised his right of further appeal to the Crown Court.

On 12 July 2010 the council issued a summons to prosecute Mr Allsop for failure to comply with the notice. It is accepted however that this summons was issued in error by the council and it was subsequently withdrawn.

The appeal to the Crown Court was heard on 24 June 2011 by Her Honour Judge Watson, sitting with two lay justices. Again, the appeal was dismissed. In her full and clear judgment, Judge Watson said —addressing an argument that the notice did not clearly set out within the four corners of the document the description of the problem, the reason for the notice or any consideration of why the...