R (Beronstone Ltd) v First Secretary of State

This is the appeal of Beronstone Ltd under Section 289 of the Planning Act 1990 against the decision of an inspector appointed by the Secretary of State determining an appeal against an enforcement notice. The enforcement notice was issued on 18 February 2004 under Section 172. It alleged a breach of planning control in that development had been carried out without planning permission. I shall go back to the terms of that enforcement notice in a moment or two. Let me sketch the facts to a degree first of all.

The appeal site is a field off Lodge Lane to the south, I think, of Little Chalfont in Buckinghamshire. It is an area of grassland which the inspector records as being about 8.8 hectares, on about 5.2 hectares of which 554 wooden stakes have been driven into the ground. The inspector says that some of the stakes are placed between a metre and two metres apart, but, in the main, they are about four metres apart. They seek to define and mark out the boundaries and extent of about 40 plots of land together with a network of access ways. The tops of the marker stakes are painted differently to distinguish between those defining the access ways and those defining the plots. I do not think it is necessary to say more about the circumstances of the appeal site other than to say that the area of land I have described lying to the west of Lodge Lane extends to the west, almost to the rear of houses on another converging road to the west which joins Lodge Lane a little further to the south. At this stage I note that the land is within the Metropolitan Green Belt and within the Chiltern Area of Outstanding Natural Beauty, and in such areas the policy designation means that there is a general presumption against development.

The council had been concerned at an earlier stage that in reliance upon permitted development rights some means of enclosure might be laid out. It is unnecessary to set out exactly how and why. It is simply right to record that, as a result, the council asked the Secretary of State for an Article 4 direction. The Secretary of State, in his letter of 1 September 2003, indicated that he was satisfied that there was a real and specific threat of development of that nature sufficient to withdraw the permitted development rights covered by the General Permitted Development Order. This had the effect of depriving the appellant of any argument that the posts that were put on the land were a means of enclosure that was permitted by the General Development Order.

The enforcement notice was issued on 18 February 2004. What it alleged was that there had been a breach of planning control which was defined in the enforcement notice before it was amended in this way:

"Without planning permission, the erection of approximately 0.7 metre high fence posts to form enclosures, sub-dividing the land into a number of small plots of land and demarking what appears to be a potential access track to the newly defined and enclosed plots on the land."

The council, under its "Reasons for issuing this notice", recorded the Article 4 direction I have mentioned and said something about its reasons. At the end of paragraph 24 ( sic), after recording the history of some earlier claims and recording that they had been replaced by the newer, higher fence posts, it was said:

"2 ….. The recently erected fence posts sub-divide the land and thereby enclose the individual plots to the detriment of the visual amenity of the locality as set out below."

They then recite the planning policy considerations and return to the effect of the posts on that in these words (paragraph 3):

"The marking out of the sub-divided plots of land by individual posts is considered to be significantly detrimental to the open and rural character of the area and to the detriment of the visual amenity of the area, mindful in particular to the location within the Chilterns Area of Outstanding Natural Beauty."

I do not quote further although there is more in that passage.

What the enforcement notice required the appellant to do was -

"Remove from the land edged black all fence posts that have been erected on the land."

The time for compliance given was one month.

An appeal was lodged against this notice and an inquiry was held on 14 April and 7 July 2005. At that appeal Mr Clive Newberry QC appeared on behalf of the appellant. He made a number of submissions. He called Mr Bond to give planning evidence on behalf of the appellant. Mr Newberry has assisted me with his submissions again today. Mr Langham appeared for the Chiltern District Council and called Mr Bowden. Both Mr Bond and Mr Bowden have provided statements in these proceedings, as has the inspector, Mr Bailey. I further note that there were a number of letters from interested parties and there was the evidence of Mr Naylor-Smith, who was the chairman of the Little Chalfont Village Society. The inspector's decision letter was dated 1 August 2005. It is going to be necessary to return to it in rather greater detail. I am going to put it aside for a moment in order to turn back to set out the law that seems to me to be relevant.

The appeal against the enforcement notice was made under Section 174 (1). That section specifies certain grounds of appeal as follows. Ground (a) is:

"(a) that, in respect of any breach of planning control ….. planning permission ought to be granted ….."

(I say in parenthesis that I am abridging these grounds).

"(b) that those matters [alleged] have not occurred;

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

Grounds (d) and (e) do not concern this matter.

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

Section 174 then goes on to deal with the way in which an appeal has to be brought.

The enforcement notice alleged that development had taken place. The first issue is whether or not what was done amounted to development. If it was development, then there is no doubt that it was not permitted. There is an issue however as to whether or not, under ground (a), the inspector should have permitted it.

Dealing with the question of development, it is necessary to turn to Section 55 of the Town and Country Planning Act. Section 55 (1) states, amongst other things:

"(1) ….. 'development,' means the carrying out of building engineering, mining or other operations in, on, over or under land ….."

The inspector expressly considered building and engineering operations. He did not expressly consider mining operations because it was so evident that what happened on the land was not a mining operation.

What he concluded, at paragraphs 21 to 25 which I shall come to in greater detail in a moment, is that the driving of these particular stakes amounted to "other" development. He considered the permanence of the stakes as being a relevant factor. He was right to do so. He considered the scale of development. He referred to a note in the Encyclopaedia of Planning Law at paragraph P55.26 that referred to "other" operations. That note, it is worth recording, reads as follows:

"In Coleshill and District Investments Co Ltd v Minister of Housing and Local Government [1969] 2 All ER 525, the House of Lords rejected a submission that 'other operations' should be construed according to the sui generis rule and thereby confined to the same class or genus of operations as building, mining and engineering operations. Beyond the very general notion of physical change it proved impossible to identify and class of genus to which those three types of operations belonged. In practical terms the area of physical operations not already falling under the other three headings are those of a scale too small to be able to qualify as, for example, an 'engineering operation' and in many cases will be operations for which deemed permission is conferred by the General Permitted Development Order 1995."

This note then turns to other matters, and I read no more of it. The inspector thus considered the question of scale in the passages to which I will shortly turn.

I have noted that ground (a) is an appeal on the basis that planning permission should be granted for the development that is the subject of the enforcement notice. Section 70 of the Act is the section that deals with the way in which local planning authorities can deal with applications, in particular it enacts that a local planning authority may grant planning permission either on condition or subject to such conditions as they think fit, or they may refuse permission.

I turn to the section under which this appeal is brought which is Section 289 of the Act. Section 289 (1) provides that -

"Where the Secretary of State"

(I interpose: that includes an inspector appointed by him)

"gives a decision in proceedings of an appeal under Part VII against an enforcement notice the appellant may"

according as rules of court may provide -

"appeal to the High Court against the decision on a point...