R (Hall Hunter Partnership) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 15 December 2006 |
| Neutral Citation | [2006] EWHC 3482 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/215/2006 |
| Date | 15 December 2006 |
[2006] EWHC 3482 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
CO/215/2006
MR TIMOTHY STRAKER QC AND MR GARRETT BYRNE (instructed by Messrs Clifton Ingram) appeared on behalf of the CLAIMANT
MR PAUL BROWN (instructed by the Treasury Solicitor) appeared on behalf of the 1St DEFENDANT
MR CHRISTOPHER KATOWSKI QC and MS ALISON OAKES (instructed by Waverley Borough Council) appeared on behalf of the 2ND DEFENDANT
MR GUY WILLIAMS (instructed by the Tuesley Residents Group) appeared on behalf of the 3RD DEFENDANT
Introduction
This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against decisions by an Inspector appointed by the first defendant dismissing two appeals by the claimant under section 174 of the Act against two enforcement notices issued by the second defendant on 29th July 2004. The Inspector's decisions are contained in a decision letter dated 15th December 2005. Both of the enforcement notices related to land at Tuesley Farm, Tuesley Lane, which lies near Milford, and to the south of the southernmost extent of the built-up parts of Godalming ("the farm").
Factual Background
The farm is in the Green Belt and most of the appeal site is in an Area of Great Landscape Value ("AGLV"). The Surrey Hills Area of Oustanding Natural Beauty ("AONB") abuts the south-eastern boundary of the appeal site. The claimant purchased the farm in July 2003 with the intention of using it for growing soft fruit. Production began in 2004 and continues. In order to facilitate the growth of the soft fruit, the claimant erected polytunnels which the Inspector said were aptly described by one manufacturer as "large walk-in plastic tunnels" (paragraph 22) (References in parenthesis are to the paragraph numbers in the Inspector's decision letter).
In 2004 some 45.6ha of the farm was covered with polytunnels with a maximum coverage at any one time of 28.84ha. In 2004 the last of the tunnels was dismantled and removed in November (paragraph 27). In 2005 the first polytunnels were erected in February, the month in which the inquiry into the appeals opened before the Inspector. He inspected the farm in May and August 2005 and the inquiry concluded, having sat for 11 days in total, on 7th October 2005. In 2005 the cumulative total coverage of polytunnels was 60.8ha, with a peak coverage of 39ha at any one time (paragraph 28).
The claimant owns other farms in Surrey and Berkshire which are used for growing soft fruit. In addition some "break crops" are grown. The claimant employs 50 permanent staff and 650 summer harvest staff. Some 230 seasonal workers were accommodated in 45 caravans at the farm. Each caravan had a fitted bathroom and water, electricity and propane gas supply, with sewage disposal being linked to the farm's main drainage system (paragraph 21). The breach of planning control alleged in enforcement notice A was the change in use of the land from agriculture to the stationing of caravans (together with associated operational development) without planning permission. The breach of planning control alleged in enforcement notice B was the erection of polytunnels (and windbreaks, bunds and fencing) without planning permission. The enforcement notices related to the whole of the farm and the second defendant's reasons for issuing notice B stated that:
"Approximately 40 hectares (99 acres) of polytunnels have been erected."
The Inspector dismissed both appeals and upheld the enforcement notices with corrections, subject to an extension of time for compliance from four months to 12 months.
The grounds of challenge
On the behalf of the claimant, Mr Straker QC challenged the Inspector's decision on four grounds. (1) The Inspector erred in concluding that the polytunnels were "development" within the meaning of section 55(1) of the Act. (2) If the polytunnels were development, the Inspector erred in concluding that they were not permitted development within Class A in Part 4 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO"). (3) The Inspector erred in concluding that the use of the appeal site for the stationing of caravans to house temporary workers at the farm was not permitted development by virtue of Part 5 of Schedule 2 to the GPDO (the submission made to the Inspector that stationing the caravans fell within Part 4 of Schedule 2 to the GDPO was not pursued before me). (4) The Inspector erred in a number of respects when concluding that planning permission should be refused for the polytunnels and the caravans.
I will examine these grounds in turn.
Ground 1
The Inspector described the polytunnels, which were first used in the United Kingdom in 1993, as follows, in paragraphs 23-25 of the decision letter:
"23. Essentially, they comprise a web of metal legs and hoops over which a plastic covering (described by some as polythene sheeting) is stretched and anchored with ropes. The metal legs are tubes, typically between 1.5m and 2.0m in length, with a screw-end to enable it to be wound into the ground and a 'Y'-shaped uppermost portion into which the hoops are slotted; thus, a single 'y'-shaped leg provides the support for the hoops of adjoining tunnels and linked blocks of tunnels several bays wide can be formed in this way.
24. Machinery is utilised to screw the legs into the ground between 0.6m and 1.0m in depth. Hoops are delivered in straight lengths and are bent into an arc on site by machine during the course of erection; diagonal and horizontal bracing bars are clamped to the legs and hoops of the first and some second bays. The main parties are agreed that the height of the tunnels, as formed, would vary, depending on the crop: 3.2m for strawberries and 3.7m for raspberries; generally, the maximum height would be up to 4m. The tunnels can vary in width between 6.5m and 8.0m and vary in length between 50m and 400m.
25. Mr M A Hall estimates that it takes 45 man-hours to fully-erect one acre and 32 man-hours to dismantle the same; in answer to my question, he indicated that teams of ten are engaged in these erection and dismantling processes."
Having set out the hectarages covered by the polytunnels in 2004 and 2005 (see paragraph 4 above), the Inspector said in paragraphs 29 and 30:
29. Hence, in essence, polytunnels are erected on a greater or lesser number of blocks around the farm for nine months of the year; they cover different crops, at different times, for different periods. Thus, between any given times of the year, the particular extent of the farm covered in this way fluctuates.
30. However, on day 10 of the inquiry, in cross-examination, Mr H Hall indicated that in 2006, he anticipated between 34ha and 45ha would be covered at any one time, but he was unable to state the anticipated cumulative total. Nor was he willing to commit the appellant in 2006 and beyond in 2007 to the same hectarage covered in 2005 because the extent to which land would be utilised in this way would be directed by market-led forces."
The Inspector said in paragraph 31 of the decision letter that all the parties had founded their cases on the areas covered by polytunnels in 2005. Against this factual background, the Inspector considered the claimant's appeal against enforcement notice B on ground (c) in section 174(2) of the Act: vis, that there was no breach of planning control because the polytunnels did not amount to development (ground 1 in this appeal); alternatively they were permitted development (ground 2 in this appeal).
For the purpose of considering ground 1, it is unnecessary to either set out the statutory framework or to list the relevant authorities because Mr Straker accepted that the Inspector's "self direction" in paragraphs 35 to 40 of the decision letter as to the legal principles to be applied could not be faulted. Under the heading "Whether 'Development'", the Inspector said:
"35. Section 57 of the 1990 Act (as amended) indicates that 'planning permission' is required for the carrying out of 'development' of 'land'. By s.336(1), 'land' includes a 'building', the definition of which '… includes any structure or erection… ' The 1990 Act (as amended) contains no further definition of 'structure' and the term would need to be given its ordinary meaning; 'erection' (in relation to 'buildings' ) includes extension, alteration and re-erection. By s.171A(1)(a), the carrying out of 'development' without the required 'planning permission' constitutes a breach of planning control.
36. Section 55(1) defines 'development', for the purposes of the 1990 Act (as amended), as meaning '… the carrying out of building, engineering, mining or other operations in, on, over or under any land, or the making of any material change in the use of any buildings or other land'. By s.55(1A),'… building operations' includes - (a) demolition of buildings; (b ) re-building ; (c) structural alterations of or additions to buildings ; and (d) other operations normally undertaken by a person carrying on business as a builder'.
37. However, s.55(2) adds that certain operations or uses of land shall not be taken for the purposes of the 1990 Act (as amended) to involve development of land including '… (e) the use of any land for the purposes of agriculture or forestry … and the use for any of...
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