R Robert Spedding v Wiltshire Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWHC 347 (Admin) |
| Docket Number | Claim No: CO/1698/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 347 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
THE HONOURABLE Mr Justice Fraser
Claim No: CO/1698/2021
and
Matthew Henderson (instructed by Ellis Jones Solicitors) for the Claimant
James Neill (instructed by the Defendant's Legal Services Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 14 January 2022
Draft distributed to parties: 14 February 2022
Introduction
In these proceedings, the Claimant, a close neighbour of the Interested Party and landowner adjacent to the property in question, seeks judicial review of a decision by the Planning Department of Wiltshire Council (“the Council”) in relation to change of use by the Interested Party. The change of use is from Agricultural Building and Land to Flexible Commercial Use.
The decision by the Council was dated 30 March 2021 (“the Decision”) and was that prior approval by the Council was not required for the change of use of land at Nursery Farm, Stock Lane, Landford SP5 2ER (“the Farm”) by Schepens International Ltd, the Interested Party (“Schepens”), pursuant to Class R of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“Class R”, “GPDO”). The position of the Claimant is that prior approval of the Council was required for the change of use, and that the Decision was unlawful and should be quashed.
Permission to bring judicial review and proceed with the claim on three separate grounds was granted by Mr Neil Cameron QC (sitting as a Deputy High Court Judge) on 15 July 2021. These grounds are identified below, numbered 1, 2 and 3.
A further ground, which the parties at the hearing referred to as Ground 1A (a description which I shall also adopt) does not have permission, as it was added by the Claimant by amendment, that amendment being consented to. The Claimant does, however, still need permission from the court to advance this ground. There are therefore, if this new ground is given permission to proceed, four grounds, although Ground 1A is closely connected with Ground 1.
The need for the permission of the court to bring judicial review on this additional ground was addressed at the commencement of the hearing on 14 January 2022, and both parties asked me to deal with this ground on a so-called “rolled up” basis, dealing both with permission and the substantive ground (if permission were given) in the judgment. I was content to adopt that course and have done so.
The case was initially set down for hearing on 23 November 2021. However, very shortly before that hearing, counsel for the Council became unavailable due to reasons connected to the Covid-19 pandemic. That hearing had to be vacated, which was accomplished by an Order made by Steyn J on 23 November 2021.
Schepens lodged Summary Grounds of Resistance inviting the court to refuse permission on the basis that the claim was not arguable. Witness evidence was also lodged on its behalf. However, it did not lodge a skeleton argument, make substantive submissions, appear at or participate in the substantive hearing. It adopted the position of the Council. Both the Claimant and the Council lodged evidence and appeared by counsel at the hearing seeking judicial review.
The facts
The Farm is situated in Wiltshire some distance south of Salisbury and on the edge of the New Forest. The site lies within the Special Landscape Area and Flood Zone 1 for the River Test catchment area. Until 2018 the Farm had been used by Schepens' predecessor in title, Faccenda Property Ltd, (“Faccenda”) as a poultry farm. The Farm measures 15.77 acres (6.382 hectares) in area. A number of plans were submitted as part of the evidence, and also handed up in larger copies at the substantive hearing. I do not append any of them to this judgment but I have considered them all; they were submitted by Schepens as part of its notification and application to the Council. The Farm formerly consisted of four poultry houses and other buildings. The poultry houses were arranged in pairs, with two poultry houses adjacent to each other on the western side of the Farm and the other two poultry houses adjacent to each other on the eastern side of the Farm. The two poultry houses on the eastern side of the Farm were approximately 16 metres apart. All the poultry houses were long rectangles. The most easterly of these poultry houses was demolished before Schepens purchased the Farm and all that remains is the concrete base of that building. This claim concerns that concrete base and the adjacent poultry house (“the Building”) which is now the most easterly of the three remaining poultry houses. The concrete base of the one that has been removed is what is sometimes called a hardstanding. The internal floor area of the Building is approximately 1595 m 2.
A private lane (“the Lane”) links the Farm to Stock Lane and thereafter the A36. The Lane is also a public footpath. The A36 is a fairly major A road. The Claimant lives in a house immediately adjacent to a tight bend at one of the narrowest parts of the lane. That house is owned by the Claimant and his wife. As part of the evidence submitted for the proceedings, certain photographs were provided both of the Farm, the Building and also the Lane. The Lane could be described simply as a rather small country lane. It is narrow, with high hedges on either side. The photographs show the extreme narrowness of the Lane, including the effect of the very sizeable HGVs used by Schepens in the course of its business at the Farm.
Schepens informed the Council in 2020 that it had acquired the farm. On 4 November 2020 at 12:19, one of the directors of Schepens, Mr Christopher Schepens, sent an email to Ms Becky Jones, a Senior Planning Officer at the Council, stating the following:
‘So we are now the legal owners of Nursery Farm and I'm emailing to notify you officially that as of today 4th November 2020 we will be using up to 150 square meters of the building circled in the below drawing in blue and the curtilage under class R permitted development.’
On 9 November 2020 at 11:55, Ms Jones replied to Mr Schepens by email which said:
‘You have kindly provided a plan and the date you wished to commence, however please could you also confirm in writing the precise nature of the uses/s that will take place within the 150sqm, for completeness and the file?’
Mr Schepens replied to Ms Jones on the same day at 12:27 by email which stated:
‘My previous email has the plan indicating the building we are going to be using up to 150 square meters and the date is also on the email, the only detail I omitted was the use which will be, storage.
I have attached the drawing again just in case you didn't get it last time, you will see a blue circle around the lower poultry house and this is where the 150 square meters will be, it will likely be spread on pallet bases in any part of that building occupying not more than 150 square meters so it is impossible to stipulate exactly where it will be so I circled the whole building.”
The plan which was then provided is relevant to Ground 3 because the Claimant maintains that Schepens failed properly to comply with the prior notification requirement in paragraph R.3(1)(a)(iii) of Part 3 of Schedule 2 to the GPDO. This failure arises from the plan, and the way that it failed to identify the precise area or location. It simply had a blue circle drawn around the Building. This is a point to which I shall return under Ground 3.
The Claimant did not know about this exchange and obtained copies of these communications later in 2021. Regardless of that, from about mid-November 2020 Schepens commenced using the Farm for mixed commercial use. It is not known if any part of the Building was used for storage, but Schepens commenced storing a number of what are called elevated shipping containers on the hardstanding outside of the Building. These shipping containers can only be carried on the very large HGVs to which I have already referred, and these access the Farm by using the Lane. They were kept outside the Building, and therefore outside of the area circled in blue on the plan. The increased amount of traffic and the new use of the Farm by Schepens led to a number of complaints and some concern amongst those affected in the locality, and the local Member of Parliament also became involved. It is not necessary to go into that in any detail but it forms part of the background.
Thereafter, on 25 January 2021, Schepens applied to the Council for a determination of whether the Council's prior approval was required for the Proposed Use, more specifically for the change of use of a further 350 m 2 of the Building and land within the Farm (but outside of the Building) pursuant to Class R. In the application form in answer to the instruction ‘Please describe the proposed development’, Schepens stated:
‘We intend to use the poultry house, to the far east of the ‘agricultural unit’ (please see the site plan) for storage and distribution for up to 500 square meters. We will use the smallest part of the curtilage on the east side of said poultry house, not exceeding the area of the building.”
The application form also sought an answer to the instruction ‘Please provide details of any transport and highway impacts and how these will be mitigated’, Schepens stated the following:
‘The former use of the site was...
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