Blog Layout
Bhandal vs SSGLC and Bromsgrove DC
Roderick Morton • 27 October 2020
Hot off the press this month is this very recent judgment from the fountain pen of Mr Justice Pepperall on the limits of powers to grant permission under ground (a).
The appeal decision itself can be found at 3219678/79/80 and is worth a read to better understand the merits. Owners of an Italian restaurant in a period country building were granted permission to build a period-ish sun room with a flat roof. They built a glass and aluminium one with a sloping roof instead, complete with canopy projection (and pillars too, very Roman…)
They applied for permission to retain and were refused. The refusal was upheld on appeal. The council enforced against the operational development and required demolition. The enforcement notice was appealed on grounds (a), (f) and (g). The inspector made short work of the ground (a) appeal. This was not particularly surprising given the previous appeal decision, the location of the restaurant in the Green Belt and in a Conservation Area, and the location of the sun room at the front of the building.
Where he erred, it seems, was in making equally short work of 3 of the 4 alternative schemes put forward under ground (f) but considered under ground (a) which involved (1) a flat glazed roof, (2) partial reversion to the permission (now expired) and (3) complete removal of the sun room with bifold doors to fill in the resulting hole in the wall of the main building. As these all involved new works, they were not, said the inspector, part of the matters enforced against and therefore outside the scope of his power to grant permission under s177.
Readers will remember that the power to grant permission under ground (a) and the deemed application is for the “whole or any part” of the matters specified in the notice as constituting the breach in planning control. LPAs will routinely suggest that alternative schemes put forward at appeal are not part of the matters enforced against and can only be considered within a separate planning application. The approach in cases such as Tapecrown , Moore and Ahmed is to give a wide interpretation to this power. In Ahmed, for instance, the court decided that a three storey building with a butterfly roof could have been “part of” the four storey flat roofed building which was enforced against. Ioannou (three flat alternative scheme not “part of” the five flat scheme enforced against) was a reminder of the statutory limitation, and also of the peril that can come from well-meaning underenforcement.
But Ioannou was also a reminder that whether an alternative scheme was “part of” the scheme enforced against was a matter of planning judgement. In Bhandal, the inspector simply dismissed the alternatives as outside the scope of ground (a) because they involved new works, without making clear that this was his planning judgement. LPA ground (f) appeal statements will typically argue that the extent of new development work required to achieve the proposal is such that such development requires planning permission in its own right, which planning permission is outside the scope of the appeal. The Bhandal case is a reminder that it is a matter of extent, in other words a planning judgement; it is not the case that any new work creates an alternative scheme.
To be fair to the inspector, it seems likely that his reasoning was simply shorthand for a planning judgement that the amount of work involved in the alternative schemes (new roofs in 2 cases, new windows in the other) was too great. And that he used shorthand because the alternative schemes were clearly unacceptable. Unfortunately, the decision was not put it in quite those words. Had it been, it seems likely the appeal decision could not have been successfully challenged.
The judge was also influenced it seems by the interaction of ground (a) with the ability to decline a planning application under s70C. This is odd as there is no mention of 70C having been used in this case. The judge was concerned that if a narrow interpretation is taken of the power to grant permission under ground (a), a similarly narrow application of s70C would be needed in order to ensure that all applicants get at least one chance of having the merits of their application considered. That seems a strange concern as a narrow appeal decision on ground (a) would itself provide ammunition against a 70C rejection of a subsequent planning application.
The matter has been referred back to PINS. Given the history, it seems difficult to see that a different decision will be reached but perhaps it will be differently worded this time.
Where does this leave those drafting notices? The starting point must remain that notices should usually seek remedy the breach of planning control fully because the of the risk of underenforcement and creation of unconditioned permissions under s173(11); if inspectors grant something different on appeal, so be it. But those drafting appeal statements must remember to make submissions on the extent of any new work involved in alternative schemes proposed by appellants.
Amber Valley BC v Haytop Country Park Ltd [2024] UKUT 237 (LC)
Jones vs Isle of Anglesey County Council and Another [2024][ EWHC 2582] (Admin)
originally written for Scottish Planner
Warwick DC v SSLUGC and others [2022] EWHC 2145 (Admin)
LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960
LB Lambeth v SSLUHC [2024] EWHC 1391
LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467
Ward v SSLUHC and Basildon District Council [2024] EWHC 676 (Admin)
R oao Lisle-Mainwaring v RB Kensington and Chelsea and another
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)
s172ZA TCPA 1990
Ariyo v Richmond Upon Thames LBC [2023] EWHC 2278
Kazalbash v SSLUHC and Hillingdon [2023] EWCA Civ 904
Removal of facilitating development
Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)
Atwill v New Forest NPA [2023] EWHC 625 (Admin)
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)
Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30
LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)
If you have further questions on our training
Training
NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website.
© Copyright 2020 | All Rights Reserved
Contact Information
Ivy Legal
4th floor, 33 Cannon Street
London, EC4M 5SB
Tel: 020 3745 5896
enforcement@ivylegal.co.uk
enforcement@ivylegal.co.uk