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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nicholson, R (on the application of) v First Secretary of State & Anor [2005] EWHC 378 (Admin) (17 March 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/378.html Cite as: [2005] EWHC 378 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 March 2005

Mr Justice Collins:

1. The appellant appeals under s.289 of the Town & Country Planning Act 1990 (the 1990 Act) against the upholding by an inspector of two enforcement notices. Both notices related to development on a holding of some 54 acres (21.8 hectares) known as Beach House Farm in the hamlet of Beach near Upton Chegney in South Gloucestershire. The holding lies within a conservation area and the Cotswold Area of Outstanding National Beauty.
2. The holding was bought by a Guernsey based company in 2000 and leased to the appellant. Included in the purcha1e was Beach House,. a Grade II listed building standing in some 4 ½ hectares (about 11 acres) adjacent to the holding. Beach House was in a state of considerable disrepair and much work has been done in consultation with the council to bring it to a satisfactory state. Work has also been done to the holding, largely in the form of hedging and ditching and some planting of trees. Prior to the appellant entering into possession, the holding had been farmed by a tenant. Until 1998, when it became financially impossible, he had operated a dairy herd of some 40 head. When that ceased, he had had a small beef rearing enterprise. In November 1998 he had entered into a Countrywide Stewardship Agreement (CSA), the objectives of which include the restriction of hedgerows and the conservation and protection of the wildlife value of the area by managing old meadows, pastures and hedgerows. He had not started to implement his part of the CSA before he surrendered the tenancy following the purchase of the holding for the appellant. The appellant decided not to continue the CSA, which had financial advantages for managing the land to achieve the CSA's objectives rather than farming it, because it would have been necessary to allow some public access. But the work that has been done has sought to achieve similar objectives.
3. The evidence adduced before the inspector in the form of a report produced by a firm of chartered surveyors was that it was intended to introduce an organically farmed breeding ewe enterprise in 2005. The previous farmer had used fertilisers and other chemicals and the land had to be left fallow for a time to enable it to lose its contamination and be designated as organic under the Certification Regime of the Soil Association. It was assumed by the author of the report that the enterprise would be for spring lamb production by a flock of between 150 and 175 head.
4. In the course of improving the holding, the appellant decided that she would install an electricity generator to provide emergency power in the case of a breakdown. The need for this was said to have been dictated by a concern that a breakdown of power during lambing could lead to drops in temperature which could kill the lambs. The report from the surveyor stated: -

"This is a prudent measure and the very large majority of farms and agricultural units have a standby power facility, having regard to the risks in vital areas of localised mains supply failures".

The generator has been housed in an outbuilding in a field adjacent to the boundary of the land surrounding Beach House. The first enforcement notice required removal of that building.

5. Beach House and another house called Beachcroft are both accessed by an unnamed lane running off Beach Lane. The unnamed lane is a public footpath but the only vehicular traffic that can (or would want to) use it would be those wishing to gain access to either house or to land adjoining the lane. A wall divided it from the holding. That wall had fallen into disrepair. It needed to be demolished and replaced. That has been done, but the replaced wall is said to be too high and the second enforcement notice requires that it be replaced by a lower one.
6. It was contended by the appellant that she had been entitled to construct the generator building and the wall in reliance on the General Permitted Development Order 1995 (GPDO). In the alternative, she claimed that planning permission should be granted for both. The inspector rejected both grounds. This appeal asserts that he was wrong in law to reject the GPDO grounds for both and to refuse planning permission for the generator building.
7. It is convenient to deal with the generator building and the wall separately. I shall deal first with the building. Development permitted by the GPDO is set out in Schedule 2. Part 6 relates to Agricultural Buildings and Operations. Class A refers to development on units of 5 hectares or more and, reads: -

"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"

8. Development is not permitted by Class A if, inter alia, it would involve the construction of a building not designed for agricultural purposes. And there are conditions imposed upon permitted developments. Paragraph A2(2) reads, so far as material:-

"2(2) Subject to paragraph (3), development consisting of-

(a) the erection, extension or alteration of a building

... is permitted by Class A subject to the following conditions-

(i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be.

(ii) the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid:

(iii) the development shall not be begun before the occurrence of one of the following ...

(cc) the expiry of 28 days following the date on which the application; was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination; ... "

9. There are some relevant definitions. Paragraph 01 defines 'agricultural land' and 'agricultural unit' for the purposes of Part 6 as follows: -

"agricultural land" means land which, before development permitted by this Part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business, and excludes any dwelling house or garden:

"agricultural unit" means agricultural land which is occupied as a unit for the purposes of agriculture, including-

(a) any dwelling or other building on that land occupied for the purpose of farming the land by the person who occupies the unit..."

10. 'Agriculture' is defined in s.336 of the 1990 Act as including "horticulture, fruit farming, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or the purpose of its use in the farming of land), the use of land as grazing land,. meadow land, osier land, market gardens and nursery land, and the use of land for woodlands when that is ancillary to the farming of land for other agricultural purposes, and 'agricultural' shall be construed accordingly",
11. In order to be permitted development and so covered by the GPDO, the development in question must conform to the relevant requirements and conditions set out in Schedule 2. If it fails any requirement or condition, it cannot be regarded as permitted development and planning permission will be needed. The inspector decided that it failed to jump a number of hurdles. First, the land was not 'agricultural land composed in an agricultural unit' because it was not in use for agriculture nor was it so used for the purposes of a trade or business before the development was carried out. It is apparent that the GPDO does not permit development with a view to a future agricultural use. It is not possible to develop land which is not in agricultural use even if the development is intended to enable that use to take place. The inspector recognised that land could be dormant for the purposes of planning law by which he must have meant that he recognised that it should be regarded as still in use for agriculture albeit it was for a time not being actively used. Thus a decision may be made that a different form of agriculture is to be carried on and the land needs to be prepared for that. Thus a reasonable time for it to lie fallow or to be repaired can be allowed for and during that time the agricultural use should not be regarded as having ceased. The construction of the generator building commenced in October 2001. At that time active agricultural use had undoubtedly ceased and so the only question was whether such repair work to the land as had been carried out and otherwise the leaving of the land to lie fallow should have been regarded as continuing agriculture use.
12. The inspector is criticised for having referred to recent activities whereas he should have concentrated on what was being done immediately before the development. The intention behind leaving the land fallow was of some importance: the appellant's case, as the inspector records, was that it was necessary to do that 'before an organic operation could be properly authorised'. What had happened since was clearly relevant in determining what had been the intention at the material time. It is further said that the inspector failed to take the CSA into account and to appreciate properly that the activities being carried on were consistent with that. However, the CSA had been brought to an end so that those activities would not properly be regarded as having been carried out in the context of a CSA. The fact that no active farming had been carried out for at least 3 years since the commencement of the development was a relevant consideration. Neither the appellant nor her husband gave positive evidence of her intentions. The inspector regarded such as he had as unreliable given, as he puts it, 'a history of changed intentions'. He was there, it seems, referring to what had been said on the appellant's behalf in relation to what would be done in rebuilding the wall.
13. A further criticism relates to his conclusion that there was no trade or business. In Paragraph 11 of his decision he said this: -

"Secondly, although a farm enterprise does not have to be profitable to be an "agricultural trade or business" for GPDO purposes, the report by Cooper and Tanner submitted by the appellant indicates that what is proposed would be primarily a means of using and managing the land around Beach House, suggesting to me something more akin to "hobby farming" than to an agricultural trade or business.

Even that is still only an expressed intention; and despite the apparent existence of a company or trading name referred to in documents as Nicholson Farming, no farm accounts were produced in evidence".

14. So-called 'hobby farming' may be regarded as a trade or business. What I think was intended to be excluded was development said to be for agricultural purposes where, for example, the land was used to pasture horses belonging to the family or for an orchard or large kitchen garden for the house. Equally, the keeping of animals as pets or for their rehabilitation would not be likely to qualify. It must always be borne in mind that the GPDO avoids the need for planning permission in understandably tightly drawn circumstances and so it is not surprising that it should be strictly applied. Development which can be shown to be proper will be granted planning permission in the normal way. All that the inspector was saying in context was that the appellant had not shown that there was any farming business intended: it was merely a desire to make the holding attractive. He relied on the absence of accounts to support that view. It seems to me that this was a factor he was entitled to take into account in reaching his overall decision whether there was agricultural use within the definition in Part 6 of Schedule 2.
15. The question was whether at the time the development commenced there was a use for agriculture. That was essentially a question of fact. The length of time that no active use had been carried on, the concerns about the reliability of expressed intentions and the perceived lack of any commercial element could all properly be taken into account. Any views I might have as to the weight that should be attached to the individual matters are immaterial. All I can say is that I am satisfied that the inspector was entitled in law to conclude as he did on that issue.
16. That would by itself have required dismissal of the appeal. The next hurdle the inspector considered was whether the building was designed for agricultural purposes. There was evidence before the inspector on behalf of the council, confirmed by a letter from the electricity supplier, that there had only been 5 temporary interruptions to the power supply in the 3 years before the development commenced. Furthermore, there had been only some 7 interruptions of short duration in the 2 years prior to November 2002. The generator has in fact been used for Beach House since its construction, but that does not of itself show that it could not have been designed for an agricultural purpose.
17. That phrase has been the subject of judicial consideration in Belmont Farm Ltd v MHLG (1962) 13 P&CR 417. The building with which that case was concerned was a large aircraft hanger and so it is hardly surprising that the appellant failed. His argument, which was rejected, was that 'designed' meant no more than 'intended for'. Lord Parker CJ at p.424 said that the correct approach was to 'look at the structure at the time of its erection and ask: Is this designed for the purpose of agriculture in the sense of its physical appearance and layout?' He continued: -

"I am influenced by that because we are dealing here with a Town and Country Planning Act. Moreover, Mr Cumming-Bruce has referred us to several sections of the Act itself where the word 'designed' is used which clearly suggests the interpretation which I think is correct. In particular, he has referred us to section 18(3), which provides:

Where permission is granted under this Part of this Act for the erection of a building, the grant of permission may specify the purposes for which the building may be used: and if no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it was designed.

There, I think, undoubtedly it cannot merely mean for the purpose for which it is intended by the proposed erector. I confess that having seen a large-scale photograph of this building it does assist me in coming to my own conclusion on the matter. It seems to me that nobody looking at the photograph of that building would say: "Oh, that is a large farm building". It is much more likely that the would say: "Here is a man who must have his own private aeroplane". In any ordinary sense of the word it seems to me that this building could not be said to be designed for the purposes of agriculture. Accordingly, for those reasons, which I have endeavoured to state shortly, I think both these appeals ought to be dismissed".

18. The inspector dealt with this aspect in Paragraph 14 of his decision, saying: -

"Even if a different view were to be taken on that point, the conclusion would remain the same because the development involved the provision of a building not "designed for agricultural purposes". The Courts have held that "designed" here relates to physical appearance or layout rather than function (which is why I asked witnesses for both main parties whether they considered that the building looked like an agricultural building). Taking into account its height and form, the presence of external louvred openings and the paving slabs next to the entrance, I do not accept Mr Beardmore's suggestion for the appellant that the building looks similar to an agricultural bothy. In my view the building does not look like an agricultural building. It looks more like a domestic outbuilding".

19. It is submitted that the inspector was wrong to have regard merely to the building's physical appearance. I accept that its appearance is an I important factor, but it is not the only factor. A building may look like an i outbuilding, but it does not necessarily mean that it was not designed for an agricultural purpose. A tool shed for a market garden may from the outside not look like an agricultural building, but its layout may make it clear that it is. This building was designed to house an electrical / generator. If that· can properly be regarded as having an agricultural purpose, it may qualify. But, largely for the reasons already given, it did not and so this hurdle was properly regarded as not having been surmounted.
20. No fee accompanied the application as it should have done see Paragraph A2(2)(d)(ii) of Part 6 of Schedule 2 to the 1990 Act and Paragraph 1 of Regulation l1A of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (51 1989/193). If the fee had accompanied the application, there would have been no doubt that (subject to the preceding points) there would have been no bar to the carrying out of the development without prior approval since the Council did not reply within 28 days: see Paragraph A2(2)(iii)(cc) of Part 6 of Schedule 2 of the 1990 Act. The provision of the fee was, the inspector decided, a condition precedent to the ability to commence the development so that the council's failure to respond within 28 days did not assist the appellant.
21. Paragraph A2(2)(ii) requires that an application be accompanied by the descriptions and plan and fee. A2(2)(iii)( cc) refers to the expiry of 28 days following the receipt of the application. Parliament has not required the information or the fee to be included in the application but that they should accompany the application. The burden must be on the council to reply within the 28 day period. If an application is made which is not accompanied by the relevant matters the council will no doubt refuse to approve it until the deficiencies are remedied. But it seems to me that the language used means that a failure to reply within 28 days can mean that what is applied for can, if otherwise it qualifies, go ahead.
22. The inspector further thought that the building did not conform to the details which had been submitted and that it was higher than reasonably necessary. He did not develop his reasons for forming this view. If these had stood by themselves, I do not think the reasoning would have sufficed. However, as the inspector himself said, it was unnecessary to go into more detail since the development was for other reasons not permitted by the GPO.
23. I must now consider the points raised in relation to the refusal of planning permission. It is submitted that the inspector failed to apply the guidance relating to development in the Green Belt properly. The land lies within the Bristol-Bath Green Belt. Thus 'very special circumstances' are required to satisfy development unless a new building falls within Paragraph 3.4 of the PPG because it was constructed for the purpose of agriculture. It was intended, as the inspector found, partly for supplying electricity to Beach House. This, submits Mr Coppel, is to import an exclusivity requirement into Paragraph 3.4 which is inappropriate. The findings made in relation to the GPDO mean that the inspector was bound to decide that the building was not constructed for the purpose of agriculture. He went on to consider the position on the basis that that purpose was at least included. There is a presumption against building in the Green Belt. Accordingly, a purposive construction of Paragraph 3.4 would properly lead to the conclusion that at the very least the real purpose behind the construction of the building must be agricultural even though it could provide some other benefit. The inspector was entitled to conclude that this building did not meet the test.
24. He is further criticised for having stated that, albeit this development might by itself have no very great adverse impact, the potential cumulative effect was relevant. I see nothing wrong with this, since it is only material if the building did not qualify within Paragraph 3.4. The inspector was entitled on the evidence to reject the contention that potential power cuts provided very special circumstances. Even if that were so (and the evidence I have already referred to does not support it) it would not justify having the building where it has been sited. Rather it could have awaited the preparation of the barn to be used for lambing and housed either in or adjacent to it. The inspector reached an unimpeachable planning judgment that the development was incompatible with policy for development in the Green Belt and that it would be detrimental to the listed building.
25. I turn now to consider the second notice concerning the wall. The construction of a wall falls within Part 2 of Schedule 2 to the GPDO as a minor operation. Class A of Part 2 permits 'the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure'. Paragraph A.1 does not permit such development if:

"(a) the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed one metre above ground level.

(b) the height of any other gate, fence, wall or means of enclosure erected or constructed would exceed two metres above ground level;

(c) the height of any gate, fence, wall or other means of enclosure maintained, improved or altered would, as a result of the development, exceed its former height or the height referred to in sub-paragraph (a) or (b) as the height appropriate to it if erected or constructed, whichever is the greater: ... "

26. The original wall was in a poor state of repair. Its height was apparently 3 feet 6 inches (or 1070 millimetres). The land behind the wall was at differing levels, ranging from something under one quarter to about three quarters of its height. Thus the wall was in part to divide from and in part to retain the land behind it. That the height appeared to have been uniform to the surface of the lane is of some importance since there is a verge which rises to a height varying between about 150 and about 250 millimetres. The inspector concluded from the evidence before him that there had been no verge when the wall was originally built or at least, if there had been, it had been removed when the base of the wall was formed and a new verge had been added later.
27. The enforcement notice specified the matters appearing to constitute the

breach of planning control in these words: -

"Erection of a boundary wall to a height of approximately 1700 mm without the benefit of planning permission".

It required the appellant to: -

"reduce the height of the field boundary wall to a height of 1070 mm above the existing ground level".

28. The inspector recognised that this lacked precision. The council had intended that the wall should be lowered to a height of 1070 mm measured from the surface of the adjacent lane and should be capped in the same way as the unauthorised wall. Accordingly, he directed that the notice should be varied to require the appellant to:

"Reduce the height of the field boundary wall to a height of 1070 mm, this height to be between the nearest part of the adjacent tarmac-surfaced road (either Beach Lane or the unnamed lane leading south-westwards from Beach lane as appropriate)and the highest part of the wall. The lowered wall is to be capped in the same style as the existing wall using stone and mortar matching the existing wall".

Mr Coppel does not submit that, if the arguments he deploys to attack the inspector's conclusions fail, the variation was unlawful.

29. The first point taken by Mr Coppel was that the appellant could reconstruct the wall to its original height pursuant to Paragraph 4.1(c). This point was not developed before the inspector since the evidence upon which it is said to have been based was shown to have been a misleading photograph. In any event, the height required is over one metre which, according to paragraph A.1(a), is the maximum permitted assuming, as the inspector decided, it was applicable. Thus what has been permitted is the old height. Further, Mr Sharland submits that to demolish and rebuild a wall is not to maintain, alter or improve it so that paragraph A.1(c) does not apply. I am inclined to think that A.1(c) should be given a purposive construction so that a new wall can, if it replaces an existing wall, be of the same height provided that it otherwise looks like the old. However, I do not need to decide this issue since the height of 1070 mm was chosen because it was that of the old wall.
30. Mr Coppel submits that the inspector was wrong to regard paragraph A.1(a) as applicable. The unnamed lane is a highway but limited to pedestrians. It is not therefore a 'highway used by vehicular traffic' since that is a composite phrase which refers to a highway used by vehicular traffic by right. The inspector rejected this argument. He decided it meant no more than that the highway was one which was in fact used by vehicular traffic. The purpose behind the height restriction was one of safety. Mr Coppel disputed this, although he was unable to provide any other reason for the limitation. He drew my attention to Article 3(6) of the GPDO which reads: -

"3(6) The permission granted by Schedule 2 shall not, except in relation to development permitted by Parts 9,11,13 or 30, authorise any development which requires or involves the formation, laying out or material widening of a means of access to an existing highway which is a trunk road or classified road, or creates an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons".

31. This was, he submitted, the provision which dealt with safety in relation to highways and so A.1(a) must have some other rationale. That I do not accept. 3(6) is a general provision relating to obstruction to view which could be created by many developments other than the erection of a wall. There is no reason to believe that A.1(a) had any other purpose than safety. As Mr Sharland pointed out, if Parliament had intended to limit the restriction on height to highways for use by vehicular traffic it could have used the word 'carriageway' as defined in the Highways Act 1980. 5.329(1) of that Act defines it as a 'way (other than a cycle track) over which the public have a right of way for the passage of vehicles'. I am afraid I do not agree with the opinion of Mr Hobson, Q.C., which was produced before the inspector and which supported the appellant's construction. Since some highways which are not for use by vehicular traffic may be used quite extensively by vehicular traffic (for example, an access to a private club) it is not surprising that Parliament should have concerned itself with whether there was de facto use. I again remind myself that the GPDO avoids the need for planning permission so that if there is very little vehicular traffic and there are no other planning objections, a wall of greater height may be permitted.
32. Mr Coppel's other submission relates to what is meant by 'above ground level'. He submits that the inspector was wrong to have believed that there was a general acceptance at the inquiry that the height was meant to refer to what he called the outside height, that is to say, the height as viewed from the lane. The inspector in a statement before me states that he does not recall any argument being advanced that the ground level should be that on the field rather than the lane side. A statement from the appellant's solicitor who represented her at the inquiry records his argument that the height should be regarded as the wall plus a barbed wire fence which extended above it where the ground level of the field was such that the wall would have been too low to prevent stock from jumping over it.
33. Mr Coppel sought to reinforce his argument that the appropriate ground level was that of the field by reference to Article 1 of the GPDO, which contains definitions. 'Building' is defined as including any structure or erection but 'in Schedule 2, except in Class B of Part 31 and 33, does not include any gate, fence, wall or other means of enclosure'. This may be thought to be an unpromising start to the submission, but Mr Coppel relies on Article 1(3), which reads: -

"1(3) Unless the context otherwise requires, any reference in this Order to the height of a building .... shall be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph "ground level" means the level of the surface of the ground immediately adjacent to the building or plant or machinery in question or, where the level of the surface of the ground on which it is situated is not uniform, the level of the highest part of the surface of the ground adjacent to it."

34. In 1(3), there is no limitation on the meaning of building so that, since a wall is a structure, it will apply. Accordingly, he submits that the relevant level is that of the ground adjacent to the wall. This presumably means that the wall's height will fluctuate according to the level of the ground behind it. It is indeed difficult to apply the 1(3) test to something such as a wall and that is no doubt why a wall is excluded from the general definition of a building. It is clear that the exclusion in Article 1(2) must apply. In Part 2 of Schedule 2 a wall is not to be regarded as a building so that Article 1(3) does not apply.
35. I do not doubt that there may be circumstances in which it may be difficult to be sure which side of a wall should represent the relevant ground level. But where a wall is a retaining wall, it seems to me to be self-evident that it must be measured from its footing and the ground level is to be found there. Since the height of walls adjacent to a highway is limited in the interests of safety, it would be absurd to regard the height as being dictated by anything other than the ground level of the highway. And in the circumstances of this case, the original wall had clearly been measured from the lane side. Thus in my judgment the inspector's approach was clearly correct.
36. It follows that the appeal against both enforcement notices must fail.