R (Evans) v Cornwall Council [QBD]
| Jurisdiction | England & Wales |
| Judge | HHJ Birtles |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2013 |
| Docket Number | Case No: CO/8172/2012 |
[2013] EWHC 4109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Birtles
Sitting as a Deputy High Court Judge
Case No: CO/8172/2012
and
Mr Charles Mynors (instructed by Messrs Stephens Scown LLP) for the Claimant
Mr Edward Helme (instructed by Cornwall Council Legal Services) for the Defendant
Hearing date: 12 November 2013
Approved Judgment
Introduction
Mr Evans is the owner of Keveral Barton House, St Martins, Looe, Cornwall PL13 1PA. He seeks judicial review of the decision made by Cornwall Council in response to notifications made under condition A.2(2) of Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 relating to the proposed erection of agricultural buildings at Keveral Farm, namely
i) two polytunnels (received 29 March 2012: reference PA12/03077); and
ii) a mushroom barn (received on 12 April 2012: reference PA12/03389).
The Claimant was represented by Mr Charles Mynors of counsel. The Defendant was represented by Mr Ned Helme of counsel. I am grateful to both counsel for their written and oral submissions. The Interested Parties did not appear but submitted written representations with attachments.
The hearing took place on 12 November 2013. At the conclusion of the hearing I reserved judgment.
The factual background
Keveral Barton House is an old building set in the countryside. It is of unassuming appearance now, but dates back to the 16 th century, and is all that remains of what was once a significantly larger complex. It was listed by the Secretary of State in 1964 as a building of special architectural or historic interest at grade II*, making it one of the most important 2% of non-ecclesiastical listed buildings in the country. The list description is at trial bundle pages 81–84.
Keveral Farm comprises a group of buildings that have grown up over several centuries adjacent to Keveral Barton. Access to the farm is obtained from a small lane running north from the junction with Looe Hill at Penhale Farm ("the Lane") along a bridleway. As is shown on the relevant office copy entries,
i) the Farm itself, and almost all of the bridleway, is owned by One Community Limited under title CL122978;
ii) the fields to the east of the Farm (title CL124069) and to the north of the Farm (title CL157638) are owned by Keveral Sustainable Land Holdings.
All or part of this land is subject to an agricultural tenancy owned by Keveral Farmers Limited. The three organisations are based at the Farm. There is a useful layout plan at trial bundle page 104.
Prior to the present proposals, there have been a number of proposals for works at Keveral Farm. Several of them have resulted in appeals or litigation, in each case centring on (or at least considering) the question of whether the particular works would affect the setting of Keveral Barton House. Although the Claimant places some reliance on this history I do not regard it as relevant to the issue which I have to decide in this particular case.
The application for prior notification for One Community Limited was submitted by Mr William Knight on 9 April 2012. It is for a new mushroom barn: trial bundle pages 152–154. In answer to the question "would the proposed development affect an ancient monument, archaeological site or listed building or would it be within a Site of Special Scientific Interest or a local nature reserve?" Mr Knight has said no. The application has a plan attached to it: trial bundle page 155.
The second application was made by Mr Kevin Johnson on behalf of Keveral Sustainable Land Holdings and was for the two polytunnels. The application form is at trial bundle page 156–158 and in answer to the same question which I have set out above, Mr Johnson has also answered no but in the box which follows for the answer yes, he has said this:
"The closest polytunnel will be 70m from a listed building, but it will not be visible from the listed building."
Again a site plan follows at trial bundle page 160.
The evidence in respect of the Council's procedure followed in this case is set out in the witness statements of Ms Julie Mitchell dated 24 August 2012: trial bundle pages 161–168 and 4 December 2012: trial bundle pages 169–176. Ms Mitchell is a Development Officer within the Defendant's Planning and Regeneration Service.
In her first witness statement she says this:
"5. I was the case officer who assessed the two prior notification applications for the proposed agricultural development comprising the construction of two polytunnels and construction of an agricultural building which were respectively validated by the Council on 3 April 2012 and 10 April 2012. The validation of the applications was carried out by development support officers whose role is to check that applications meet the requirements of the Council's published "Validation requirements for non householder applications".
6. On receipt of the applications I was aware that the site had a complex planning history. I therefore sought to familiarise myself with the site by reviewing the planning history, which included committee reports and photographs of the site relating to a previous full planning application for farm-wide development, and discussed the background with the case officer who dealt with the previous application. As a result of my research of the site and its planning history I was aware of the Claimant's involvement in a previous judicial review and in particular his concerns relating to the setting of this Grade II* Listed Building, Keveral Barton House.
7. The applications were submitted by the Interested Parties as required by Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, which grants permitted development rights for a range of agricultural buildings and development, subject to all relevant criteria being met. Based on guidance provided in Annex E to PPG7, it is my understanding that the basis for the prior notification procedure is firstly to verify that the proposal is permitted development and secondly to determine whether there is a need to formally assess the siting, design and external appearance having regard to the significance of its likely impact on the surroundings.
8. I firstly assessed both proposals against the criteria of the GPDO and was fully satisfied that both proposals, individually and cumulatively, benefitted from permitted development rights. I set out the reasons for this in the officer report for both applications. I remain of the opinion that both proposals are permitted development.
9. I secondly assessed the likely impacts of the proposed developments on the surroundings with reference to the details provided within the submitted applications forms and plan in full knowledge of the relationship of the proposed development to existing buildings within Keveral Farm and the adjacent Keveral Barton House and recorded archaeological interests, including the Corn Mill forming part of an existing agricultural building.
10. In relation to application PA12/03389 for the construction of an agricultural building, it was very clear to me that the scale of the proposed agricultural building (mushroom barn) would form a minor development in the context of the range of larger buildings against which it would be seen. It was also very clear to me that the positioning of an existing unlisted stone building between the site of the proposed building and Keveral Barton House would mean that the setting of the Grade II* building would be unaffected by the proposal. I did not consider that the positioning of a lightweight timber framed structure on land adjacent to the recorded former Corn Mill would have any reasonable likelihood of affecting any known archaeological interests. I concluded that the impact of the proposed development would not cause any significant impacts to justify the Council exercising control over development which would otherwise be permitted development. I summarised my assessment in a short statement in the officer report in which the reference to the "surrounding area" included the listed building and archaeological features.
11. In relation to application PA12/03077 for the construction to two polytunnels, one of the polytunnels was to replace an existing polytunnel and the other was to be an additional polytunnel. It was evident to me that the site of the proposed development was sufficiently divorced from Keveral Barton House so that the setting of the Grade II* Listed Building would be unaffected. I did not consider that the positioning of polytunnels on agricultural land would have any reasonable likelihood of affecting any known archaeological interests due to the nature of development which would not necessitate foundations. In my opinion, the nature and scale of the proposed development was unlikely to have any demonstrable impact on the surrounding landscape in the context of the existing land use. I concluded that the impact of the proposed development would not cause any significant impacts to justify the Council exercising control over development which would otherwise be permitted development. I summarised my assessment in a short statement in the officer report in which the reference to the "surrounding...
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