Taylor v Secretary of State for the Environment Transport and Regions
| Jurisdiction | England & Wales |
| Judge | Lord Justice SCHIEMANN |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1254 |
| Docket Number | Case No: CO/1242/2000 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2001 |
[2001] EWCA Civ 1254
Lord Justice Schiemann
Lord Justice Mance and
Lord Justice Keene
Case No: CO/1242/2000
2000/3687
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mary Macpherson (instructed by Malcolm C. Brown for the Appellant)
Michael GIBBON (instructed by Treasury Solicitor for the Respondent
This is the judgment of the Court
These appeals raise two points of general significance. The most important concerns the extent of the duties of an inspector considering an appeal pursuant to s.174(2)(f) of the Town and Country Planning Act 1990 against an Enforcement Notice. The other concerns the proper interpretation of Part 6 of the General Permitted Development Order 1995. 2. They arise out of two enforcement notices on Mr Taylor. He had imported a lot of waste material including rubble onto his farm and constructed with it one large hardstanding, another large area of deposited waste and a track for farm vehicles. He appealed under the Act by way of written representations against the notices to the Secretary of State for the Environment. The appeals were, save for a variation in the time for compliance, dismissed by an inspector acting under delegated powers. Mr Taylor appealed to the High Court pursuant to section 289. Jackson J. allowed the appeals and remitted the matter to the Secretary of State. Now the Secretary of State appeals to this court.
The two enforcement notices
The enforcement notices described the matters which appeared to constitute the breach of planning control respectively as follows:
"Without planning permission, the change of use of the said land from agricultural use to agricultural use and use for the unauthorised importation and deposit of waste materials including builders rubble, road menders rubble and spoil."
This gave rise to what I shall call the material change of use appeal. This is to distinguish it from the other Appeal which arose out of the other enforcement notice which dealt with the carrying out of operations and alleged:
"Without planning permission, the carrying out of engineering or other operations including the laying of a hard surface approximately 50 metres x 30 metres situated in the approximate position marked "A" on the attached plan, and the laying of a track in the approximate position between the points "A" and "B" on the attached plan."
I shall refer to this as the operations appeal.
The steps required by the material change of use notice to be taken were
(i) Cease the importation and deposit of waste materials onto the land
(ii) Remove from the land all waste materials imported and deposited on the land including builders rubble, road menders rubble and spoil
(iii) When all waste materials have been removed from the land restore the land to its former condition as agricultural pasture land before the breach of planning control occurred.
(iv) Remove from the land all plant and machinery which is not associated with the lawful agricultural use of the land.
The steps required by the operations notice to be taken were
(i) Stop the carrying out of all engineering or other operations on the land
(ii) Remove from the land the area of hard standing and the track surface, together with all waste and other materials deposited on the land
(iii) Restore the land to its former condition as agricultural pasture land before the breach of planning control occurred
(iv) Remove from the land all plant and machinery which is not associated with the lawful agricultural use of the land.
The grounds of appeal to the Secretary of State
The possible grounds of appeal are set out in section s174(2)
(2) An appeal may be brought on any of the following grounds –
(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 or, as the case may be, the condition or limitation concerned ought to be discharged;
(b) that those matters have not occurred;
(c) that those matter (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;
(e) that copies of the enforcement notice were not served as required by section 172;
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173 (9) falls short of what should reasonably be allowed.
In relation to the material change of use appeal, the appellant relied on grounds (b), (c), (f) and (g). In relation to the operations appeal the appellant relied on grounds (a), (c), (f) and (g). It can be noted at this stage that he did not rely on ground (d); nor did he suggest either then or before us that what had taken place did not amount to engineering or other operations.
The powers of the Secretary of State
These are found in s. 176(1) and (2)
176. (1) On an appeal under section 174 the Secretary of State may
(a) correct any defect, error or misdescription in the enforcement notice; or
(b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.
(2) Where the Secretary of State determines to allow the appeal,
he may quash the notice.
In very broad terms the task of the Inspector was to determine whether there had been a breach of planning control, whether to grant planning permission and, if he determined that the Enforcement Notices were rightly served, whether to vary any of their terms and if so which.
On the face of it what Mr Taylor had done amounted both to the making of a material change of use and to the carrying out of operations and was thus development which required planning permission – see s.55. Mr Taylor had not applied for, still less obtained, express planning permission from the authority. However he submitted that he had permission which had been granted by the General Permitted Development Order made pursuant to s.58(1)(a). The first main question in this appeal is whether this submission was well founded.
The General Permitted Development Order 1995
This provides as follows: -
3.(1) … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2. (2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2
Schedule 2 Part 6
A The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of
(a) works for the erection, extension or alteration of a building; or
(b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit.
A.1 Development is not permitted by class A if-
…
(d) the ground area which would be covered by
(i) any works or structure (other than a fence) for accommodating livestock or any plant or machinery arising from engineering operations; or
(ii) any building erected. by virtue of Class A would exceed 465 square metres.
A.2(1) Development is permitted by Class A subject to the following conditions -
…
(c) waste materials shall not be brought on to the land from elsewhere for deposit except for use in works described in class A(a) or in the provision of a hard surface …
(2) … development consisting of –
…
(b) the formation or alteration of a private way;
(c) … the deposit of waste material (where the relevant area … exceeds 0.5 hectare) is permitted by Class A subject to the following conditions [there then follow various conditions precedent with which in the present case there has been no compliance].
Schedule 2 Part 9
A. The carrying out on land within the boundaries of an unadopted street or private way of works required for the maintenance or improvement of the street or way.
The inspector's decision
The material paragraphs read as follows: -
Appeal Decision Ground (b) (Appeal 1)
3. I conclude from the evidence of the main parties and what I saw on my site visit that a large quantity of waste material including builders and road menders rubble, has been brought on to the land which is in use for agricultural purposes for the rearing of sheep. The tipping of waste materials in general constitutes a material change in the use of land. The question of whether the works carried out is operational development reasonably necessary for the use of the land for agricultural purposes is a matter for consideration under the ground (c) appeal. I conclude that the breach of planning control alleged in the notice, namely the change of use of the land from agricultural use to agricultural use and use for the unauthorised importation and deposit of waste materials including builders rubble, road menders rubble and spoil has occurred as a matter of fact. The appeal on ground (b) therefore fails.
Ground c (Appeals 1 & 2)
5
…….
6. ……
7. …….
8. High Ash Farm is a working farm of approximately 50 hectares. The agricultural holding consists of fields and an orchard and is in use for sheep rearing. I find as a matter of fact that the hard surface in the approximate...
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