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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 >> Williams, R (on the application of) v Secretary of State for Communities & Local Government [2007] EWHC 3445 (Admin) (22 October 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3445.html Cite as: [2007] EWHC 3445 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		Monday, 22nd October 2007

1. MR JUSTICE BEATSON: This is an application for permission to appeal against a decision of a planning inspector made on 4th April 2007 in respect of land on Forstal Lane, Harrietsham, Kent. The applicant is represented by Mr Lamming of counsel. I have before me a skeleton argument on behalf of the Secretary of State, signed by Mr Buley, who submits that the grounds of appeal are not arguable and leave should be refused. As is customary in these cases, the Secretary of State does not appear.
2. The Inspector's decision concerned two enforcement notices made and served on 28th February which were to take effect on 4th April 2006 unless an appeal was made. An appeal was duly made and the matter came before the Inspector. The breach of planning control alleged in the first enforcement notice is change of use of the land from agriculture to a mixed use for agriculture, storage and distribution of pallets and vehicle repairs and vehicle spraying and, in respect of the second enforcement notice, operational development comprising of the laying of an area of hard surfacing and a hard surface access track.
3. I have concluded that permission should be given for this matter to go forward. Mr Lamming made three submissions. First, that the Inspector fell into error in relation to the first enforcement notice in concluding and taking into account at paragraph 37 of his decision that a proposed condition to which the landowner was amenable limiting the height and extent of stored pallets would not meet the breach of planning control. Mr Lamming submits that the Inspector's statement that "The Council would have a remedy in the form of a breach of condition notice, but harm could be caused before such a notice came into effect" erred in law because it did not adequately take account, or take account at all, of the fact that that once there has been an alleged breach and a notice served under section 187 of the Act there is no need for a further notice in respect of further alleged breaches at any time.
4. Since the Inspector considered that the remedy in the form of a breach of condition notice would not deal with harm caused before such a notice came into effect, it is submitted that he fell into error because, save on the first occasion, it would be possible to deal with such harm. Mr Lamming submitted that the condition was not in itself unreasonable or in breach of the relevant policy as set out in the circular. But he argued that the Inspector's view that it was unrealistic to expect the appellant to be able to comply with a condition limiting the height and extent of pallets appears to suggest there is doubt as to whether the condition is reasonable (see paragraph 28 of circular 11/95). I have concluded that the point Mr Lamming made based on section 187A(7) is arguable and, together with the other points he raised, justifies the case going forward.
5. The second ground on which he argues the decisions are arguable relates to the conclusion of the Inspector on the access track. Mr Lamming submitted that the Inspector erred in holding that the access track was not substantially completed before 28th February 2002 and in so holding failed to apply the decision in Cowen v Secretary of State for the Environment [1999] 3 PLR 108.
6. Mr Lamming submitted that the Inspector ought to have held that the works to the track carried out by the appellant in 2003 and 2004 were works of improvement to what was already the vehicular way to what was already development. He relied on paragraphs 63 and 66 of the decision. Paragraph 63 sets out the appellant's submission but in paragraph 66 the Inspector records the evidence of Mr Sharpe and also states in relation to the position of a photograph taken in April that:

"The track appears to be grassed over and there are two gates closing it off from the lane."

Paragraph 68 records the Council's submission that a photograph commissioned on 25th June 2002 shows a track that is not "substantially completed". Mr Lamming submits that, having regard to the facts and the decision in Cowen, in the present case it is arguable that the finding that there was not no track at all erred in law. In Cowen's case the issue was whether improvements to a rutted farm track required permission. The improvements were that a hard surface had been put on the track in the form of a rubble sub-base and crushed stone dressing. The court held that whether the hard surface was an improvement was essentially a question of fact and degree for the Inspector; see Mummery LJ at page 114. Evans LJ stated that the issue was whether the "improvements" do not alter the basic character of the thing that is improved and that in order to apply that test it is important to establish the basic character of what was there. In that case there was a rutted farm track. Evans LJ stated the track had a primary attribute as a private way for vehicles as well as pedestrians and in that sense the hard surface was an improvement but one which did not change the character of the track; see page 117A and D.

7. In relation to this ground, I do not accept Mr Lamming's submission. Mr Buley points to the Inspector's finding that there was no substantially completed right of way before the relevant date. The Inspector refers to the time the bell-mouth appeared. Mr Lamming submitted that when the bell-mouth appeared was not relevant. However, the bell-mouth is an integral and necessary part of the use of the track by the vehicles which in fact have since used it. It was that fact which weighed with the Inspector. The Inspector was not, in my judgment, arguably in error in concluding that the character of the track was changed after the relevant date and that before the relevant date there was no substantially completed track.
8. Mr Lamming's third ground was that the Inspector's rejection of the evidence of Mr Atkinson that a period of 18 months to two years was needed for the appellant to relocate his pallet business was not supported by reasons and was thus erroneous in law. Mr Lamming submitted that in not accepting the uncontradicted evidence of Mr Atkinson that 18 months was the minimum period he erred. He should have either extended the compliance period or given reasons for not accepting the evidence. This matter is dealt with in paragraph 59 of the decision. The Inspector recorded that the Council had argued that Mr Williams had previously relocated his pallet business away from Mount Farm without any apparent difficulty and there was no reason why he could not do so again within a three month period. The Inspector, in stating that an open storage use is not easy to accommodate on a conventional industrial estate, appeared to reject this. He increased the compliance period to allow more time to find a site but, as to the evidence adduced by Mr Atkinson, he stated that the 18-month to two year period requested was excessive and he increased the period to six months.
9. On this matter I also consider that Mr Lamming has put forward an arguable case, although it is not what I would describe as strongly arguable. The issue of the period of relocation was canvassed before the Inspector. The Inspector is an expert tribunal and is allowed to take account of matters within his expertise. He is, however, obliged to put these in his reasons. Mr Buley submitted that the reasons for which the Inspector found the current use of the site was harmful in planning terms were matters which had to be balanced against the interests of the appellant. He argued that it would have been open to him to refuse to extend the time for compliance outright and, against that background, his conclusion was one that was manifestly open to him. It does not, however, appear that the particular nature of the effect of the breach of planning permission was a matter taken into account by the Inspector. It is for this reason that I do not consider this submission by Mr Buley knocks out Mr Lamming's argument. Accordingly, on those two grounds but not the third, I give permission for this appeal to go forward.
10. MR LAMMING: I am most grateful. I think that means we have to re-serve the appellant's notice but limited to the point --
11. MR JUSTICE BEATSON: You re-serve it and comply with the directions and rules on skeleton arguments.
12. MR LAMMING: We will re-serve the skeleton, indeed.
13. MR JUSTICE BEATSON: And the matter of costs is adjourned to the hearing.
14. MR LAMMING: It must be, because I have to make an oral application anyway, so costs go over to the full hearing.
15. MR JUSTICE BEATSON: Thank you.
16. MR LAMMING: Thank you very much.