R Matthews v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJudge Robinson
Judgment Date21 March 2014
Neutral Citation[2014] EWHC 1299 (Admin)
Docket NumberCO/9897/2013
Date21 March 2014

[2014] EWHC 1299 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Her Honour Judge Alice Robinson

(Sitting as a Judge of the High Court)

CO/9897/2013

Between:
The Queen on the Application of Matthews
Appellant
and
Secretary of State for Communities and Local Government
Respondent

Mr Mungo Wenban-Smith (instructed by Stephens Scown) appeared on behalf of the Appellant

Miss Jacqueline Lean (instructed by Treasury Solicitor) appeared on behalf of the

Judge Robinson
1

This is an appeal under Section 289 (1) of the Town and Country Planning Act 1990 against a decision of the Secretary of State for Communities and Local Government dated 2 July 2013 given on his behalf by an Inspector in which she upheld an enforcement notice, as amended by her, relating to land adjoining Units 9–11 Goonhoskyn Farm, Gummows Shop, Summercourt, Newquay TR8 4PP.

2

Permission to appeal was granted by Mr Justice Collins on 31 October 2013.

3
4

On 28 November 2011 Cornwall Council issued the notice. The breach of planning control alleged in paragraph 3 was —

"Without planning permission —

(1) The material change of use of the land from agricultural use to a mixed use comprising the storage and parking of motor vehicles;

(2) Engineering works creating a hardstanding on an area of the land indicated hatched blue on the attached plan."

5

The reasons for issuing the notice set out in paragraph 4 were as follows:

"It appears to the council that the above breach of planning control has occurred within the last ten years in respect of the change of use above and within the last four years in respect of the engineering works above.

The development is considered objectionable because:

The development of this agricultural field to an outdoor business storage area, associated with the use of the adjoining former agricultural buildings for activities falling within the B1, B2 and/or B8 use classes, in this isolated rural location, result in degradation of the appearance and openness of the countryside and result in an intensification in unsustainable travel patterns, contrary to the aims and intentions of the Saved Policies 1, 2, 3, 12, 16, 26 and 28 of the Cornwall Structure Plan 2004, those of the Saved Polices 1, 3, 6, 37, 51 and 53B of the Restormel Local Plan 2001, and the NPPF.

The council do not consider that planning permission should be given, because planning conditions could not overcome these objections."

6

The steps required to be taken were set out in paragraph 5:

"What you are required to do —

(1) Cease the use of the land for the parking and storage of motor vehicles;

(2) Remove the motor vehicles from the land;

(3) Remove the hardstanding from the land;

(4) Restore the land to its condition prior to the breach of planning control."

7

The former agricultural buildings referred to in paragraph 4 of the notice are Units 9–11 Goonhoskyn Farm which adjoin the appeal site to the north east. They were the subject of a lawful development certificate granted in 2007 for use for the purposes of offices, industrial and storage on the basis that the buildings had been used for those purposes for over ten years before the date of the application for the certificate. To the south of the appeal site lies the A3058 road. An access from the A3058 to Units 9–11 forms the western and northern boundary of the appeal site.

8

The notice was appealed by Mr Matthews and by two occupiers of Units 9–11, Mr Cocks and Mr Slater. The appeals relating to Mr Cocks and Mr Slater were determined by written representations and are not before the court. Mr Matthews' appeal was heard at a public inquiry on 4 June 2013 and was determined in the decision letter dated 2 July 2013, the subject of this appeal.

9

Mr Matthews appealed against the notice on the grounds set out in Section 174 (2) (b), (c) and (d) of the 1990 Act, namely —

"(b) that [the matters constituting a breach of planning control stated in the notice] have not occurred;

(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."

10

There was no appeal on ground (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" — and the prescribed fee was not paid so that there was no deemed application for planning permission under Section 177.

11
12

Prior to the inquiry the Inspector produced a Pre-inquiry note in which she flagged up a number of issues for consideration. Under the heading "Grounds of appeal" the note says:

"There is no appeal on ground (a) and therefore no deemed planning application for the Inspector to consider. Consequently it will not be appropriate for evidence to be heard at the inquiry as to the planning merits of the development enforced against (for example, regarding the visual impact of the development, or details of other developments permitted by the council elsewhere).

The question, whether it was expedient for the council to issue the enforcement notice, is not one that can be challenged in these proceedings: arguments about expediency can only be raised by way of judicial review proceedings ( Britannia Assets (UK) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 1908 Admin."

13

In the decision letter the Inspector considered first an argument that the reasons for issuing the notice were defective because they only referred to storage and not parking. She rejected that argument and concluded that the notice was neither a nullity nor invalid:

"12. The 2002 Regulations require an enforcement notice to specify the reasons why the local planning authority consider it expedient to issue the notice. The notice must also specify all policies and proposals in the development plan which are relevant to the decision to issue the enforcement notice.

13. The reasons set out in paragraph 4 of the appeal notice state that the development is considered objectionable because 'the development of this agricultural field to an outdoor business storage area, associated with the use of the adjoining former agricultural buildings for activities falling within the B1 B2 and/or B8 use classes, in this isolated rural location, result in a degradation of the appearance and openness of the countryside and result in an intensification in unsustainable travel patterns'. The reason then goes on to refer to a number of policies in the Cornwall Structure Plan and the Restormel Local Plan. As there are reasons and policies are listed, the notice is clearly not defective on its face.

14. The regulations require the local planning authority's reasons to be specified, not that those reasons should stand up to scrutiny. The ability to appeal an enforcement notice on ground (a), that planning permission should be granted for the development enforced against, provides the opportunity to challenge the Council's reasons on their merits. The use of 'development' in the reasons covers both the operational development and the change of use, and consequently addresses the concerns of the 2012 Inspector relating to the earlier operational development notice.

15. The requirement is that anyone who is served with a copy of a notice should understand from the outset the authority's reasons. The reasons make reference only to an outdoor business storage area, and do not refer explicitly to the use for parking of vehicles (the appellants' challenges as to whether storage of vehicles has taken place is dealt with below under the ground (b) appeal). But there can be no doubt that the appellants have understood the Council's reasons. All the appellants have addressed in their submissions the visual and travel impacts of the hardstanding and the parking of vehicles on it and the relevance or otherwise of the policies listed in the notice despite none of them appealing under ground (a). The visual impacts of parking of vehicles as opposed to storage of vehicles are in practice very similar.

16. It is argued on behalf of Mr Matthews that if I conclude that the appeal site is only being used for parking and not for storage (as I have done below) upholding the notice would cause injustice because the reasons do not make specific reference to parking, and the appellants are denied the opportunity to appeal on ground (a) against the enforcement notice.

17. But any of the appellants could have lodged a ground (a) appeal and sought planning permission, either for the whole of the material change of use enforced against, or in respect of parking only if they considered on the basis of previous appeal decisions that use of the land for storage of motor vehicles would not be acceptable. That is the case even bearing in mind the corrections I am making to the allegation, because those do not add any new elements to it. Even taking into account that under the new section 70C of the 1990 Act they may not now have the opportunity to have an application for planning permission under Part III of the Act determined, they certainly could have appealed under ground (a) at the appropriate time and had a deemed planning application considered.

18. The same considerations apply to the creation of the hardstanding which forms part of the allegation. The appellants had the opportunity to appeal under ground (a) and to seek planning permission to retain the hardstanding, and that could have been...

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1 cases
  • Stamatios Miaris v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 4 June 2015
    ...be granted in relation to all or any of the matters said to constitute the breach of planning control: see R (Matthews) v Secretary of State for Communities and Local Government [2014] EWHC 1299 (Admin) (" Matthews") at [61]-[64]. 22 The Secretary of State's power to grant permiss......

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