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)

LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)

LB Brent v SSLUHC and Yehuda Rothchild [2022] EWHC 2051 (Admin)

Liquid Leisure Ltd, R (On the Application Of) v Royal Borough of Windsor and Maidenhead [2022] EWHC 1493 (Admin)

Manchester City Council vs SSLUHC and Kousar [2022] EWHC 1062 Admin

This article was first published in the NAPE newsletter of August 2018. Case report - Chesterton vs Wokingham BC [1] – s70C TCPA 1990 The High Court recently had another chance to consider the scope of s70C TCPA 1990 and took that opportunity to further restrict the judgment in R(Deep Banghard) vs Bedford Borough Council [2] to its facts. Our article on Deep Banghard was published in the NAPE November 2017 newsletter. S70C enables LPAs to decline to determine a planning application where to grant permission would involve granting permission for the whole or any part of the matters specified in an enforcement notice. The section was intended to stop appellants using strategic planning applications to delay effective enforcement. In Chesterton vs Wokingham BC, the appellant was the owner of a very nice spread on the banks of the Thames at Henley which was occupied by its main director. The land is designated green belt, it is in a conservation area and in a prominent location. As well as the main house, there is a 2 storey garage and 2 storey boathouse which were connected by a single storey storage building with a terrace on its roof. The built forms of the garage and boathouse were in line with planning permissions but their linking by the storage building meant that their permissions could not be said to have been implemented. The appellant applied for retrospective permission for the structure as built in May 2016 and the council served an enforcement notice in June 2016 against the whole structure. The permission application was refused and the enforcement notice was upheld on appeal on the basis that the size, scale and massing meant that it was inappropriate development in the greenbelt context. While complete demolition had been sought, the inspector altered the notice under ground (f) to require the storage building to be demolished and the rest of the structure brought into line with the extant permissions. Time to comply was extended. Rather than complying, the appellant lodged a further application shortly before the expiry of the compliance period seeking permission for a balcony linking the boathouse and garage. The council declined to determine the application on the basis that it related to matters specified in the enforcement notice. The balcony incorporated elements of the existing store roof. The appellant sought judicial review of the council’s decision. The judgement contains an interesting review of the purpose of s70C and its related provision, 174(2A), which prevents the ground (a) appeal of an enforcement notice which is issued after a planning application has been made for the matters specified in the enforcement notice. The logic of the two provisions is not to prevent the merits of an unauthorised development being considered at all but rather to ensure that they are considered only once, the proverbial “one bite at the cherry”. In the Deep Banghard case, the council was prevented from declining an application for retention and storage use of a dwelling building under s70C on the basis that the inspector had already ruled that the permission sought under ground (a) in the enforcement appeal (ie retention as storage) was not something he could decide within the limits of s174(2)(a) as it was not a matter set out in the enforcement notice. Judge Nathalie Levien QC decided that all developers were allowed one chance to have the planning merits of a proposal considered, one “bite at the cherry”. Banghard has already been significantly restricted by Gilbart J in R (Smith) vs Basildon Borough Council [3] . In Chesterton, Martin Rodgers QC sitting as a deputy judge noted the breadth of the wording of s70C which allowed LPAs a discretion to decline to determine where the application related to the whole or any part of the matters specified in the enforcement notice and noted that these reflected the breadth of the basis for the ground (a) appeal. It was not necessary, he said, that there is complete overlap between the EN breach and the planning application before s70C is engaged. The appellant relied on Banghard where it was suggested that anything more than minor differences would mean that the EN and the PP application related to different matters. The judge rejected this; so long as “any part” (beyond deminimis) of the application related to the same matters as the EN, it could be declined under s70C. Of course, whether it should be declined was a planning judgement and no doubt the differences were relevant to that judgment Further, the “one bite at the cherry” doctrine in Banghard was qualified in the sense that if the applicant had already had the chance to have the merits of his planning application considered at the enforcement appeal but had failed to take that chance, it was reasonable to decline to determine the planning application. In this case, the appellant could have raised its current scheme as an alternative under ground (f) in the enforcement appeal. Its failure to do so counted against it. This seems a little harsh as the work required to get from the “as built” storage building to the balcony proposal was not insubstantial and it is difficult to see that it would have been a winning approach under ground (f). It seems likely that we will see further litigation on the extent to which theoretical possibilities under ground (f) should be sufficient to engage s70C. The “whole or any part of” test for appeals under ground (a) is a minefield on which inspectors are not consistent and on which there are some significant court judgments For instance, the inspector in Banghard rightly held that an alternative storage use for a building was not “part of” the dwelling which the enforcement notice alleged had been created. Other inspectors have reached wholly different conclusions focusing on the built form and ignoring the use. If the s70C power is to stand or fall on the “whole or any part of” test, more consistency is required and it seems likely that we may see another spate of litigation on this aspect. LPAs must also bear in mind that the s70C power is a discretionary one and the question of whether an application covers the whole or part of the matters set out in an enforcement notice is a matter which requires the exercise of planning judgment, rather than an administrative stroke of the pen. [1] Chesterton Commercial (Bucks) Limited vs Wokingham DC [2018] EWHC 1795 (Admin) [2] R (Deep Banghard) vs Bedford Borough Council [2017] EWHC 2391 (Admin) [3] R (Smith) vs Basildon Borough Council [2017] EWHC 2696 (Admin)

This post was first published in November 2017. Section 70C The High Court recently gave some guidance on the the application of s70C of the TCPA 1990, the power to decline to determine retrospective planning applications. R (Deep Banghard v Bedford Borough Council [2017] EWHC 2391 (Admin) was an application for judicial review of a decision by Bedford BC to decline to determine an application. As a reminder, s.70C of the 1990 Act was inserted by s123(2) of the Localism Act 2011. It was introduced as a measure to avoid delays in achieving effective planning enforcement due to multiple retrospective applications. Developers subject to enforcement notices would make retrospective applications for permission with the aim of delaying the need for compliance with the enforcement notice and/or delaying the council’s ability to take further action for non-compliance. The appellant obtained planning permission in 2010 for erection of an outbuilding for storing vehicles. A subsequent investigation found that the building was used as a dwelling. Bedford BC issued an enforcement notice, subsequently upheld on appeal, which alleged the construction of a dwellinghouse. The appellant’s case under his ground (b) appeal was that there was an intervening storage use of the building (in accordance with the 2010 permission) prior to conversion to a dwelling. This ground failed as the Inspector concluded, on the balance of probabilities, that the earlier permission was never implemented. The building constructed was materially different in size, appearance, and functionality to that permitted. The Inspector considered that the design of the building would indicate that it was not intended for storage purposes, but was built as a dwelling without the claimed intervening storage use. The 2010 planning permission, not implemented, had lapsed by the time of the enforcement appeal. The Inspector then considered Mr Banghard’s ground (f) appeal, which objected to the requirement to demolish the building. The Inspector was effectively invited to grant permission for 2010 development under ground (a) and amend the requirements of the notice under ground (f). Under s177, Inspectors only have power to grant permission under ground (a) for something which forms part of the breach stated in the enforcement notice. As the ground (b) findings were that the 2010 planning permission was not implemented, the Inspector could not conclude that the 2010 permission formed part of the matters alleged in the enforcement notice. The Inspector, therefore, did not have the option to grant permission and the ground (f) appeal failed. By the time of the inquiry, the appellant had made two planning applications for retention of the building for holiday home and storage uses and the council had decided not to determine these applications under s70C. These could not be considered at the inquiry. After the inquiry, he submitted a further application for retention of the building for storage, which the council again declined to determine. It is this latter decision that was judicially reviewed. From the appellant’s point of view, it can easily be seen why he might feel aggrieved that his proposals could not be considered at the inquiry but nor, it seemed, could he have them considered under the planning application system. From the council’s point of view (as detailed in the delegated report), the applications were simply a delaying tactic to avoid compliance with the notice. In her ruling, Deputy High Court Judge Nathalie Lieven QC highlighted the relevant sections of the council officer’s s70C report, which referred to the application proposal involving the retention of the building which was enforced against, albeit modified, and as such (said the officer), formed part of the matters specified in the notice. Secondly, the officer analysed the merits of the storage use, suggesting that planning permission would not be granted should the application be allowed to be determined. Mr Banghard said that s.70C was not engaged on the facts of the case. He said that the planning application proposed an entirely different scheme, i.e. a storage use, and not a dwelling as alleged in the enforcement notice. The Inspector’s findings in the ground (f) appeal, confirming that he could not assess the merits of a storage building (because it was not implemented or alleged), were heavily relied on. He also made an irrationality argument. The council said that whether the schemes were the same was a planning decision, which was for the council rather than the court. While there was an element of unfairness arising from the inability to get the planning merits considered, that arose from the appellant’s own decision not to implement the 2010 permission and was in any case outweighed by the need for effective planning enforcement. There could be no unfairness while the notice had not been complied with. The Judge agreed with the Council that the s70C question was, to a certain degree, a planning judgement for the authority, but added that it is important to bear in mind that the decision must not be clearly unfair to an applicant. She disagreed with the Council that there is a need to balance a degree of potential unfairness against the need for effective enforcement action. She confirmed that the Parliamentary intention was to ensure fairness in all cases. An applicant can have the planning merits assessed either via an appeal against an enforcement notice or a planning application, but not both, and not neither. The case is interesting for the arguments which were rejected. It was irrelevant, for instance, that Mr Banghard had chosen not to implement an earlier planning permission which had since lapsed. It was irrelevant that he had arguably used the 2010 permission to cover up subsequent unlawful development. It is also interesting that the judge considered that councils should not shy away from action for non-compliance where successive spurious applications are made. Such applications should not prevent eg prosecutions. Ultimately, Judge Lieven concluded in this case that the application for a storage use was not in respect of the whole or any part of the development alleged in the enforcement notice, which involved the construction of dwelling. She found therefore, that the Council’s decision to decline to determine application was not correct on the facts of the case. The Council did not lawfully engage s.70C. Cherries played an important role in the decision, mentioned no less than 5 times. As the judge put it, “As Cranston J put it in Wingrove the applicant cannot have multiple bites of the cherry. However in the present case the effect of the Council's interpretation of s.70C is that rather than the Claimant having multiple bites of the cherry, he has had none.”

Sage v SSHLCG [2021] EWHC 2885

R (oao) Neophytou vs Enfield Council and Chubbah [2022] EWHC 521 (Admin)

Manchester City Council v SSCLG and Chaudry and Pathak [2021] EWCA Civ 1920