William Bannister v Secretary of State for the Environment and R.F. Fordham
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1994 |
| Judgment citation (vLex) | [1994] EWHC J0715-15 |
| Date | 15 July 1994 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2733/93 |
[1994] EWHC J0715-15
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Crown Office List
Before: Mr. David Widdicombe Q.C. (sitting as a Deputy Judge of the Queen's Bench Division)
CO/2733/93
MR. R. FOOKES (instructed by Messrs Saunders Sobell Leigh & Dobin, London, WC1) appeared on behalf of the Applicant.
MR. D. HOLGATE (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
THE SECOND RESPONDENT did not appear and was not represented.
This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector acting on behalf of the Secretary of State for the Environment whereby he granted planning permission for the retention of a bungalow at Church Wood Farm, Church Lane, Northiam in East Sussex, without complying with agricultural occupancy conditions imposed when the bungalow was built, on the permission itself and on the approval of reserved matters.
The permission was granted by the Inspector on the deemed application for planning permission which arises under section 177(5) of the Act of 1990 on an appeal against an enforcement notice. The enforcement notice had alleged breach of the agricultural occupancy conditions. The appeal was on grounds (b) and (d) of section 174(2) of the Act of 1990; that is to say, on the grounds that the matters alleged in the notice had not occurred and that the notice was outside the time limits in the Act. Both these contentions were rejected by the Inspector. Although there was no appeal under ground (a) (planning permission should be granted), section 177(5) states that in an appeal against an enforcement notice there is deemed to be an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control. The Inspector granted planning permission pursuant to this provision. In a case where planning permission is granted on an enforcement notice appeal, it is possible to apply to this court under section 288 instead of section 289 of the Town and Country Planning Act 1990. That was laid down in Gill v. Secretary of State for the Environment (1985) JPL 710.
At the hearing in this court there was some discussion by counsel of the technicalities of sections 174 and 177 of the Act in relation to the procedure for granting permission in the case of breach of a condition, but both counsel agreed that such technicalities of construction did not give rise to an issue, and I propose to say no more about them.
The applicant, Mr. Bannister, is the owner of land adjoining the appeal site. Mr. Holgate, for the Secretary of State for the Environment, raised the initial point that he was not a "person aggrieved" for the purposes of section 288 and therefore not entitled to apply to the court. I will deal with that contention later.
The Inspector held a local inquiry into the appeal, and gave his decision by letter dated 17th August 1993. He described the site and its surroundings and the background to the appeal as follows:
"Site and Surrounds
4. Church Wood bungalow is a modest detached bungalow constructed in the early 1980's. It lies within open countryside. There is no mains water or electricity supply, electricity being provided by means of an oil fired generator. The land associated with the bungalow comprises 11 acres part of which (about 3 acres) is an old apple and plum orchard the rest being woodland. There is another larger area of woodland (some 30 acres in extent) which is part of Great Gotely Wood and which is separated from the land associated with the bungalow.
Background
5. Great Gotely Wood has been in the ownership of your family since before the war. On the edge of the wood for many years stood a small timber and corrugated iron dwelling. This was destroyed by fire in 1980. In 1981 outline planning permission was granted for the erection of a dwelling to replace that destroyed by fire but situated at Church Wood. Approval of the matters reserved by the outline permission was granted on 28 May 1981. Both the permission and the approval are the subject of the occupancy condition. The bungalow was built in 1981 and occupied by your late father and your mother as their residence. An application made in 1989, following the death of your father, to remove the occupancy condition was refused."
He dealt with the deemed planning application as follows:
"The Deemed Planning Application
18. The deemed application is for the continued use of the appeal bungalow without complying with the occupancy condition. In determining this application I consider the main issues are whether the condition was appropriately imposed and, if so, whether the retention of the condition remains appropriate.
19. On the first issue I need to examine the circumstances in which the condition was imposed. The reports to Planning Committee in 1980 state that 'the site lies within an area where the only development normally allowed is that for which there is an overriding agricultural or forestry need and no such need exists or is claimed in this case'. The main issues identified in the reports are first of all whether it was appropriate to permit a new dwelling in substitution for the one destroyed. The writer of the reports considered that it was appropriate because 'there is a strong presumption in favour of a replacement in cases involving a loss of dwelling'. The second identified issue was whether the replacement dwelling would be better located in the position chosen by the applicant (that is the appeal site) rather than the site of the original dwelling. The writer of the report considered that 'the original position was remote, with very poor access across field tracks'. The writer stated that 'the position chosen is nearer a metal road, nearer existing dwellings and on a former smallholding which is capable of being operated as a small agricultural enterprise'.
20. Members were recommended to grant planning permission but subject to an agricultural occupancy condition. They decided to make a site inspection before coming to a decision and, at the next meeting, granted permission subject to such a condition but also to a section 52 agreement precluding restriction on the occupancy of the new bungalow to that contained in the occupancy condition.
21. The Council state that although an agricultural or forestry occupancy condition is normally imposed only in cases of agricultural or forestry need nothing in PPG7 or other relevant guidance suggests that it cannot be appropriate in other circumstances. They say that although agricultural considerations were not a major factor in deciding whether permission for a replacement dwelling should be granted they were critical in influencing the decision to grant permission on the appeal site rather than at Goteley Wood. They argue, looking at the matter in the round, that a dwelling of this size and on this site would not have been permitted but for reasons connected with agriculture/forestry. In these circumstances, they say, the imposition of an occupancy condition was appropriate.
22. To my mind the imposition of an occupancy condition involves a significant interference in the rights of the individual owner. The normal justification for an agricultural or forestry occupancy condition is a need to ensure that a dwelling approved in order to meet agricultural or forestry need is kept available for those purposes. In this case there was no such need and thus the normal justification for such a condition was absent. Was there any other sufficient justification? The previous use of the appeal site as a smallholding and the possibility of re-use as such was certainly one (but only one) of the factors which influenced approval of the location of the bungalow. But the fact that agricultural/forestry considerations played a part in the decision to approve the bungalow at its present location does not in my view justify a restriction on the occupancy of the bungalow to those engaged in agriculture or forestry. In my judgment the paramount consideration in the decision to grant approval of the appeal bungalow was the loss of the previous dwelling in Gotely Wood. In those circumstances the requirement not to rebuild that bungalow (contained in the section 52 agreement) was fully justified. The imposition of an occupancy condition was not. I conclude on the first issue that the occupancy condition was not appropriately imposed.
23. I appreciate that the appeal bungalow (though of modest size) is considerably larger than the dwelling it replaced. However, as is clear from the evidence of Mr Fifield, this is not uncommon where permission is given to replace an older dwelling. I am not convinced that agricultural or forestry considerations played a significant part in this respect. I also take into account that your father complied with the terms of the occupancy restriction. That does not mean however that the restriction was justified. For the reasons given I consider that the imposition of this onerous encumbrance was not necessary or reasonable.
24. Having reached this conclusion on the first issue there is no need for me to consider the second issue. As the condition was not appropriately imposed in the first place I consider planning permission should be granted for the retention of the bungalow without complying with the condition.
25. I have taken into account all other matters raised with me, in particular, the representations made by or on behalf of those living nearby. None of these however...
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