Harrogate Borough Council v Crossland & Anor [2012] EWHC 3260 (QB) (20 November 2012)

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England and Wales High Court (Queen's Bench Division) Decisions

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Cite as: [2012] EWHC 3260 (QB)

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		Neutral Citation Number: [2012] EWHC 3260 (QB)
		Case No: 2LS90092

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Leeds Crown Court
1, Oxford Row
Leeds, LS1 3BG

20th November 2012

B e f o r e :

THE HONOURABLE MR JUSTICE COULSON
____________________

Between:

	HARROGATE BOROUGH COUNCIL	Claimant
	- and -
	(1) GEOFFREY CROSSLAND (2) ANNE CROSSLAND	Defendants

____________________

Mr. John Hunter (instructed by Harrogate Borough Council) for the Claimant
Mr. Bruce Walker (instructed by Raworths LLP) for the Defendants
Hearing dates: 1st and 2nd November 2012
____________________

HTML VERSION OF JUDGMENT
____________________

The Hon. Mr. Justice Coulson:

1. INTRODUCTION

This case demonstrates the difficulties that can arise where, despite repeated refusals in the past, planning permission for an agricultural building can be granted by default, through inadvertence or misunderstanding. After four previous rejections of what was, to all intents and purposes, the same barn, the defendants again gave notice of their intention to carry what they claimed was permitted agricultural development. The notice was accompanied by £45, when the correct fee was £50. Despite that, the claimant notified the defendants that prior approval for the development was required, in accordance with the statutory provisions.

A few days later, the defendants sent the missing £5 under cover of a letter that was in almost exactly identical terms to their first notice. The claimant did not repeat what they had said a few days earlier, that prior approval was required. The defendants now maintain that it was only the sending of the additional £5 which validated their original application, so that the claimant's earlier notification was in respect of an invalid application, and was therefore itself invalid. In the absence of any further notification from the claimant, the defendants say that, under the relevant statutory provisions, planning permission was given by default.

That is not a position which could be described as being overburdened with the merits. At the very least, it is a position that would appear to take advantage of the defendants' own failure to pay the proper fee originally, and to be based on a highly technical interpretation of the various statutory provisions. But it was an argument which was advanced with considerable skill by Mr. Walker, on behalf of the defendants, and, although there is no authority precisely in point, he was able to rely on a number of decisions to argue that, by analogy, planning permission in default was achieved.

There are, broadly, five issues for me to decide. They are as follows:

(1) Was the Enforcement Notice of 20^th December 2006 still in force in January 2008 such that, whatever the position in relation to deemed planning permission, the construction of a barn on the land in question was a criminal offence? (Section 6 below)

(2) Is the barn building that has been partially constructed on the land "reasonably necessary for agricultural purposes"? (Section 7 below)

(3) By reference to the sequence of events in December 2007 and January 2008, was planning permission granted in default in January 2008? (Section 8 below)

(4) Has there been 'deception in the planning process' of the sort that would lead to findings against the defendants, regardless of the position under the statutory provisions? (Section 9 below)

(5) Should an injunction be granted for the demolition of the barn in all the circumstances of the case? (Section 10 below)

2. THE PLANNING HISTORY

The claimant is the Local Planning Authority ("LPA") for an area of north Yorkshire which includes land at OS Field 5169, Meagill Lane, Blubberhouses. The defendants own the land in question, which is located within the Nidderdale Area of Outstanding Natural Beauty ("AONB"). It is amongst the most beautiful parts of a county richly endowed with such wild uplands. The land is also close to the Menwith Hill listening station, and another similar facility. Further away to the south east, there is a large wind farm.

Since they acquired the land in 2003, the defendants have repeatedly sought to establish that planning permission exists, or that it should be granted, for a barn on the land. The application that is the subject of these proceedings is the fifth such application for what is, to all intents and purposes, the same barn in the same field. I summarise that planning history briefly below. It should be noted at the outset that, although the first defendant said in his written statement that these repeated failures were due to the fact that the claimant's officers did not like him and were biased against him, the claimant's refusals were, time and again, supported by the planning inspectors who dealt with the many appeals.

On 15^th May 2003, the defendants made their first application pursuant to Schedule 2 Part 6 Class A of the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO"). They maintained that the construction of the barn was permitted agricultural development. The application was rejected as invalid on 8^th December 2003.

On 7^th February 2004, the defendants made their second application under Schedule 2 Part 6 Class A of the GPDO. The defendants were advised that prior approval of the siting, design and external appearance of the barn building was required. An appeal against that decision was dismissed on 25^th May 2005. The inspector, Zoe Hill, found that:

"Given the very open nature of this area of land and the absence of existing building in the immediate area…the proposed building…would be visually prominent."

She went on to say that:

"…the sighting of a building of a size proposed in this location, isolated from other buildings…would have a visually intrusive and harmful impact on the character and appearance of the surrounding area and thus Nidderdale AONB."

On 25^th February 2005 the defendants made a third application for a very similar barn building in the same location. Approval was refused by the claimants on 3^rd May 2005, and an appeal was dismissed on 25^th October 2005. The inspector, Peter F. Davies, said:

"To say the least, this barn would not rest comfortably in the AONB…the proposal would result in substantial harm to the character and appearance of the AONB…I am no doubt that this appeal development should not proceed."

On 14^th July 2005 (when the previous appeal was still ongoing) the defendants made a fourth application in relation to a building of almost exactly the same dimensions. The claimants refused approval on 19^th September 2005. An appeal was dismissed on 15^th February 2006. The inspector, David Storrie, said that the building would be:

"…clearly visible from Meagill Lane, standing in an isolated position unrelated to any other buildings…would not reflect the traditional character of the AONB and would appear as a visually intrusive and discordant structure within the AONB."

It appears that, notwithstanding this litany of failure, the defendants started to dig the foundations of the barn. On 20^th December 2006, the claimants issued an Enforcement Notice requiring the cessation of all works concerned with the erection of a building on the land and the filling in of all the foundation trenches which had been dug. The defendants sought to appeal the Enforcement Notice but that appeal was dismissed on 3^rd October 2007. Two features of that appeal should be highlighted.

First, the defendants argued that, because of alleged errors in the way that the claimant had handled some of the earlier applications, they had acquired permission for the works by default. That argument, similar in principle to their case before me, but put forward on different facts, was rejected. Secondly, the inspector, P.J. Burke, had a number of criticisms of the proposed barn. Not only did he echo the views of previous inspectors about the discordant nature of the proposals because of the isolated position in which the proposed building would be located, but he questioned whether such a large barn was necessary for the purposes of what he described as "this modest sheep enterprise on a holding of some 115 acres of rough upland grazing".

Following the Enforcement Notice, the defendants then turned their attention to other land which they owned close by, referred to in the papers as the Menwith Hill Road site. Between October 2007 and June 2010 there were three further unsuccessful applications in relation to that site, and one Enforcement Notice. The proposed building was very similar to the barn proposed for the Meagill Lane site. The refusals were appealed, and upheld on appeal for many of the same reasons noted above, namely the isolated nature of the building, its prominence in the landscape, and the unnecessarily large size of the proposed barn.

In the light of the issues now before me, I should note that, in connection with the first application relating to the Menwith Hill Road site, the defendants again argued that planning consent had been achieved by default because of a complexity, which they themselves had introduced, relating to the payment of the appropriate fee. It appears that they made their application on 11^th October 2007 but did not pay a fee until 13^th November 2007, claiming until then that the claimant owed them money by reference to other applications. On 22^nd November 2007, the claimant issued its determination that prior approval was required. The defendants argued that, notwithstanding the absence of the fee, their application had been valid when it was made on 11^th October 2007, and that therefore the determination was out of time and planning permission was deemed to have been granted.

That argument was rejected by the inspector. He summarised the position as follows:

"9. It is agreed by both parties that if the application for prior approval was not validated until 13^th November 2007, the determination of 22^nd November means the proposed agricultural building cannot be lawful. The corollary to that, which again is agreed, is that if the application for prior approval was validly made on 11^th October 2007, more that 28 days had elapsed by the time the determination of 22^nd November was made, which would mean that the building would be lawful. Accordingly, it is agreed my decision hangs upon whether the fee required with the application for prior approval was received on 11^th October or 13^th November."

Having considered the facts, the inspector said that the defendants could not rely on the argument that the claimant owed them money in relation to other sites. He found that they had to pay the fee for the application to be valid. He therefore found against the defendants. In my view, this attempt to create an argument (which would not otherwise have been available) by splitting the application itself from the payment of the correct fee forms an important part of the backdrop to the events of December 2007 - January 2008.

3. THE EVENTS OF DECEMBER 2007 / JANUARY 2008

On 3^rd December 2007, the defendants made a fifth application under Schedule 2 in respect of the land at Meagill Lane. The letter was in the following terms:

"Notice of Intention to carry out permitted Agricultural Development.

Dear Sir,

Please be advised that we intend to construct a building for agricultural purposes on a holding of land which exceeds 115 acres. We intend to locate it at approximate grid references: OS-landranger-104/175-556 which is 48 metres from Meagill Lane Road wall and 44.5 metres from the hedge to its western corner as shown on attached location plan. There is no nearby airfield. The sketch of the building design is attached and it is to be constructed of stone walls with timber doors with a blue / grey tile covered roof and will generally take the style of a stone arched 'Dales Barn' as traditionally created in the area as we find this pleasing to most eyes. The footprint size of the proposed building will be 21.5 metres by 21 metres and the height will be as shown on the sketch. We invite the Planning Department to submit any suggestions which we could incorporate without substantial costs increase which would improve local amenities. The site exceeds 5 hectares at the location of the barn, is contiguous and is properly held by a single farming entity for the purpose of agriculture. The building is required for feed storage and machinery storage and lambing and other normal agricultural purposes but not for the housing of livestock. Today we are using the land to breed from 320 ewes and wish to increase to 450 ewes. A detail flow chart of the reasonably necessary building size is attached to this letter. Note that over-wintering and lambing are only possible with suitable shelter and storage. The alternative to sheep is forestry which removes the 'open nature' character of the area. We intend to place an earth bank and trees to the east of the location to shield the building from sight of the radio station at Meagill Lane. We repeat that we are prepared to modify details as PPG7 annex E says should happen before you make a decision to require submission of details for approval. You only have to say what you prefer to see, and it would make economic sense to do this."

The only document showing what the proposed building might look like was a computer generated image of one wall, seen from the south, with two windows either side of the main door. The stone work was laid in regular courses. No other elevations were shown. The height was identified as being nine metres to the top of the roof.

The evidence was that the first defendant wrote the letter, which was then posted by the second defendant, his wife. The letter made no reference to the fee that was payable. The first defendant said that his wife had put the money into the envelope. There was no dispute that the sum of £45 (as against the correct fee of £50) was sent with the letter. The second defendant could not remember how and why she had put £45 in the envelope.

Both defendants were shown earlier correspondence between themselves and the claimant which emphasised that the correct fee for this application was £50. Neither of them could explain how or why, given that they had been expressly told what the correct fee was, they had paid the incorrect fee. There was nothing to indicate how the £45 had been arrived at.

Because of the defendants' undoubted knowledge of the correct fee; because they had earlier concocted arguments based on their own failure to pay the correct fee; and because of their lack of any explanation as to how or why they had paid £45, I can only conclude that the underpayment was deliberate. Whilst it is unclear precisely what advantage they thought they might achieve by paying less than the full fee, I am in no doubt that it was the first step in a process by which the defendants sought to manipulate the planning process for their own benefit, as they had endeavoured to do before.

The application was received by the claimant on 12^th December 2007. On 13^th December 2007, the claimant acknowledged receipt, pointing out that the fee was £50 and asked for the outstanding £5. Importantly, no point was taken in the claimant's letter about the potential invalidity of the application created by the missing £5.

On 17^th December 2007, the claimant notified the defendants in writing to say that, in connection with the application of 3^rd December, received on 12^th December, "its prior approval of the details of the development is required". The letter was therefore in the form of a counter-notice under the relevant provisions (set out in Section 5.2 below). No acknowledgment of or reply to that counter notice was ever sent by the defendants.

On 22^nd December 2007, the defendants wrote again to the claimant. The letter was in almost identical terms to the application set out in paragraph 17 above, save that the tiles were described as 'blue' as apposed to 'blue/grey'. This minor discrepancy was not explained. Again, there was no reference to the fee. However, it is common ground that £5 in cash was sent with the letter, which also included all of the same accompanying documents as before, including the computer-generated image of the proposed barn.

In evidence, the first defendant said that he wrote this second letter and he thought his wife probably posted it. He said he put the £5 in and he sealed the letter. He also said that he put a post-it note onto the £5 to say that the £5 was in relation to the earlier notification. The existence of the post-it note is disputed but that does not seem to me to be of any real significance. The claimant's evidence was that they treated the £5 as the missing part of the fee for the earlier application.

I could not understand why, if the purpose of the letter of 22^nd December 2007 was simply to provide the missing £5, it was necessary to write a letter which looked, on its face, to be a fresh application. The first defendant was unable to help me with that enquiry. And although he suggested that it may have been because the document was simply run off the computer, he could not explain why all the accompanying documents were also included.

My impression was that, at least at the time, the defendants intended the letter of 22^nd December 2007 to be a fresh application. That was confirmed by their letter of 12^th February 2008, which complained that the claimant had not responded at all "to our new notice of intention dated 22^nd December". The letter went on to say that the claimant had referred "only to an earlier letter" (a reference to the application of 3^rd December 2007). Much later, in April 2011, the first defendant referred to there being "two notifications of December 2007".

In consequence, I find as a fact that the claimants intended their letter of 22^nd December 2007 to be a second application and that the only purpose of going about things in such an unorthodox way was to try and create confusion at the claimant's planning department, in order to give the defendants at least the opportunity to claim that they had planning permission by default.

Be that as it may, it is the defendants' case now that the letter of 22^nd December, by enclosing the £5, validated the original notice, such that the original application (which had been received on 12^th December 2007) only became valid when the £5 was received by the claimant on 27^th December 2007. Accordingly, they say that the claimant's notice of 17^th December 2007 was invalid and/or irrelevant (because, on this argument, it was sent before there was a valid application) and that, since there was no subsequent response after 27^th December, deemed planning permission occurred 28 days after 27^th December 2007. On this assumption, the 28 days expired, and planning permission in default was granted, on 24^th January 2008.

Under the GPDO, once the LPA has given notice of whether or not they wanted to approve the siting, design and external appearance of the proposed building, the second step is the response to the detail of that application. To that end, the claimant embarked on a consultation process with the Parish Council, who objected to the proposed barn on the basis that "it is not justified; the applicant does not own any sheep; the land is rented; and it should not be located in the middle of a field."

Having set out the detail and the history and assessed the main issues, on 14 January 2008, the claimant reached the following decision:

"The design of the building is the main concern in that it is to be constructed from stone with timber doors and a slate roof covering. The use of stone to the eaves is not conducive to the keeping of livestock particularly sheep as a flock of sheep require good ventilation through the building of which this will offer none. The keeping of hay in a concealed building would be potentially dangerous with a green crop of hay very likely to combust and catch fire leading to the loss of the building and all of its contents.

…In summary the building is not conducive to the requirements of modern day farming methods that will ultimately lead to an adverse impact on the character of the AONB and is therefore recommended for refusal.

Conclusion:

The proposal would be an inappropriate design and choice of materials for the required use and is therefore recommended for refusal.

Recommendation.

That the application be REFUSED.

Reason(s) for refusal:-

(1) The proposed agricultural building, by virtue of its isolated siting within the open countryside, would be contrary to saved policies A1, C1, C2 of the Harrogate District Local Plan and Regional Spatial Strategy…

(2) The design of the proposed building is inappropriate in its context by virtue of it not respecting the scale, materials and proportions of an agricultural storage/livestock building and contrary to PPS1 and PPS7 and Harrogate District Council Saved Policy HD20."

On 14^th January 2008, having reached that decision, the claimant notified the defendants, in a document entitled 'Notice of Decision on Prior Approval Application for Agricultural Development', that they had refused approval of the details of the development, setting out the two reasons noted above. That formal notice referred back to the defendants' original application of 3^rd December 2007 received on 12^th December by the claimant. There was no response to that notification.

4. SUBSEQUENT EVENTS

It does not appear that in January 2008 the defendants thought that, after almost five years of trying, they had obtained planning permission by default for the barn at the Meagill Lane site: hence their further attempts to get permission for the similar barn at Menwith Hill Road site. It seems that the construction of the barn at the Meagill Lane location only started in late 2010 or early 2011, after the last refusal on that alternative site.

At about the end of March 2011, the claimant became aware that works had begun again for the erection of the barn in the same location as that covered by the Enforcement Notice. The claimant requested the defendants to cease work and warned them as to the possible consequences. The defendants refused to cease work and refused to knock down what they had built, claiming that they had obtained planning permission by default in the circumstances set out above.

The evidence demonstrates that the defendants continued construct the barn both before and after these proceedings were commenced in April 2012. It seems that work finally ceased on the barn in about June or July 2012. Currently, it has three complete walls and the steel roof structure in place, together with some internal blockwork.

5. THE STATUTORY FRAMEWORK

5.1 The Town and Country Planning Act 1990 ("the 1990 Act")

(a) Planning Permission by Development Order

Pursuant to Section 57 of the 1990 Act, planning permission is required for the carrying out of any development of land. Section 58 provides that planning permission may be granted in a number of ways including, pursuant to Section 58(1)(a), by a development order. Section 60 provides that planning permission granted by development order "may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order."

(b) Enforcement Notices

The power to issue an Enforcement Notice is provided by section 172(1). Section 181 provides for the continuing effect of such a Notice in these terms:

"(1) Compliance with an enforcement notice, whether in respect of -

(a) the completion, removal or alteration of any buildings or works;

(b) the discontinuance of any use of land; or

(c) any other requirements contained in the notice;

shall not discharge the notice.

(2) Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice…

(5) Where without planning permission a person carries out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice -

(a) He shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale…"

Section 187 B of the 1990 Act empowers LPAs, like the claimant, to apply for an injunction to restrain a breach of planning control and, pursuant to subsection (2) "the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

(d) Determinations

Perhaps as an acknowledgement of the complexities of the 1990 Act, Section 192 provides a mechanism whereby a prospective developer can apply to the LPA for a determination as to whether or not the proposed development would be lawful. Plainly, the purpose of this section was to avoid confusion and, ultimately, to avoid the sort of situation that has arisen in this case, where a building has been partially constructed but there is a dispute as to whether or not it is lawful. The evidence is that the defendants were aware of the Section 192 procedure, and had indeed used it in connection with the Menwith Hill Road proposals. They did not use it for the Meagill Lane barn, presumably because they knew that the claimant's reaction would be negative.

5.2 The GPDO

Pursuant to Schedule 2 Part 6 Class A of the GPDO, general planning permission is granted for:

"The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more 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."

In addition, paragraph A2(2) of Class A provides that where the development comprises the erection of a building, it is permitted, 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 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 in a plan indicating the site together with any fee required to be paid;

(iii) The development shall not begin before the occurrence of one of the following-

(aa) The receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;

(bb) Where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval; or

(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 whether such approval is required or notifying the applicant of their determination…

(v) The development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out –

(aa) Where prior approval is required, in accordance with the details approved;

(bb) Where prior approval is not required, in accordance with the details submitted with the application; and

(vi) The development shall be carried out –

(aa) Where approval has been given by the local planning authority, within a period of 5 years from the date on which approval was given;

(bb) In any other case, within a period of 5 years from the date on which the local planning authority were given the information referred to in sub-paragraph (d)(2)."

In essence, these provisions envisage that, on receipt of an application, the LPA would do one of three things: first, it might say that prior approval was not required; secondly, it might say that prior approval was required; or thirdly it might fail to do anything at all, which inaction would mean that, following the expiry of 28 days from the application having been received, planning permission would be deemed to have been granted. If the LPA were required to give prior approval to the siting, design and external appearance of the building, they would consider whether or not such approval should be given and notify the developer in writing.

6. ISSUE 1: THE ENFORCEMENT NOTICE

It seems to me that, because it creates a liability in criminal law, the significance of the Enforcement Notice (paragraphs 11 and 12 above) ought to be considered first.

The parties are agreed that if, contrary to the defendants' case, they do not have planning permission for the barn, they are in breach of the Enforcement Notice. On any view, that would be a matter which I would need to take into account when considering the application for an injunction.

However, even if the defendants are right, and they achieved planning permission by default, it does not automatically follow that the Enforcement Notice was no longer of any effect. Whilst Section 180(1) of the 1990 Act provides that a planning permission may override an Enforcement Notice to the extent that there is any inconsistency between the two, that only applies to retrospective permission (that is to say, permission for development carried out before the grant of that permission). That is not this case: any permission under Part 6 of the GPDO is prospective, not retrospective. Accordingly, Section 180(1) does not provide for permission under the GPDO to override an Enforcement Notice.

In Mansi v Elstree RDC (1965) 16 P&CR 153, it was held that an enforcement notice should be amended to preserve the developers' right to carry out subsidiary or ancillary retail sales. In Duguid v Secretary of State (2001) 82 P&CR 6, it was held that there was no need to amend a notice to save permitted development rights. In that case, relation to s.181(2) the court said that it provided that a requirement to discontinue a use operated as a requirement that it should be discontinued permanently "to the extent that it is in contravention of Part III". That might suggest that, in the present case, the Enforcement Notice should be construed as no longer applying to any building for which permission has been obtained under the GPDO.

However, I agree with Mr. Hunter on behalf of the claimant that the position is not quite as clear-cut as that because, unlike s.181(2), which deals with uses of land, the applicable provision here is s.181(3), which deals with buildings and works. That contains no limitation of the kind in s.181(2) ("to the extent that…"). On its face therefore, it applies equally to buildings and works that are the subject of a prospective permission. I also agree with Mr. Hunter that this approach would not necessarily create an unacceptable anomaly, because it would still be within the discretion of the LPA to waive the requirements of the Enforcement Notice pursuant to Section 172A of the 1990 Act, insofar as they were inconsistent with such permission.

Thus, if the claimant had expressly granted permission for this barn, they would be able to waive the requirements of the Enforcement Notice under s172A and, if they had not, they would refuse to do so. It does not seem to me that any injustice is created by this interpretation; moreover, it certainly makes for a clearer outcome. In addition, the same result could have been achieved in another way, if the defendants had applied under Section 192 for a determination as to whether or not the barn development would be lawful, and therefore whether or not they would be in breach of the Enforcement Notice.

It is unnecessary to develop this point further (particularly in view of my findings about the absence of any planning permission, set out in Sections 7 and 8 below). I do not go as far as finding that, if planning permission had been granted under the GPDO, the defendants were in breach of the Enforcement Notice. But I do conclude that, on any view, the position was unclear and that therefore, at the very least, the defendants ought to have applied under Section 173A of the 1990 Act to seek a waiver of the Enforcement Notice and/or to seek a determination pursuant to Section 192.

In the light of the criminal liability created by the Enforcement Notice, I consider that the defendants took a clear and calculated risk in going ahead with the construction of the barn without taking either of those steps. In circumstances where, as they knew, their argument that they had planning permission was based on a technicality and was maintained in the face of what they well-knew to be the claimant's hostility to this development, that is a factor that must be weighed in the balance against them.

7. ISSUE 2: IS THE BUILDING 'REASONABLY NECESSARY' FOR PURPOSES OF AGRICULTURE WITHIN THE UNIT?

7.1 The Relevant Authorities

Class A of Part 6 of Schedule 2 of the GPDO permits the erection of a building which is "reasonably necessary for the purposes of agriculture within that unit". Accordingly, the burden is on the defendants to show that this barn falls within that description.

In Clarke v Secretary of State for the Environment and Anor (1993) 65 P&CR 85, the Court of Appeal said that the test to be adopted was whether the building was reasonably necessary for, and if so, was designed for, the purposes of the agricultural activities which might be conducted on the unit. Glidewell LJ said, obiter, that it did appear that the inspector in that case might have been asking himself whether the building was absolutely necessary, as opposed to whether it was reasonably necessary, but that did not justify an application for judicial review.

Clarke is also authority for the proposition that the test must be applied to the building in question (see pages 90 and 91). Thus it is not a question of simply asking whether a building is reasonably necessary but whether this building is reasonably necessary. That is an important distinction because it provides an answer to much of the defendants' criticisms of the Single Joint Expert (see paragraphs 58-67 below). In addition, it should be noted that 'designed' means "in the sense of its physical appearance and layout": see Belmont Farm Limited v Minister of Housing and Local Government (1962) 12 P&CR 417 at 424 (Lord Parker CJ).

7.2 The Issue

Both counsel originally told me that they believed that this issue should be dealt with before the issues concerned with the events in December 2007 and January 2008 because, if I concluded on all the evidence that this barn was not reasonably necessary for agricultural purposes, that was the end of the defendants' planning argument. I originally disagreed with that approach, but can now see that I was wrong and that counsel were right. If this barn is not reasonably necessary, the application of 3^rd December was invalid from the outset (as per Clarke), and no planning permission can be said to have been granted in any event.

7.3 The History

Although the planning inspectors repeatedly refused the defendants' appeals on the basis of the appearance of the building in this AONB, it is also right to say that, on a number of occasions, they also found against the defendants on the basis that there was no need for the proposed barn. Thus, in the appeal concerned with the Enforcement Notice (see paragraph 12 above), at paragraph 25 of his decision, the inspector, Patrick Burke, doubted whether the erection of such a huge building "was reasonably necessary for the purpose of this modest sheep enterprise on a holding of some 115 acres of rough upland grazing". In similar vein, in relation to the proposal to erect a similar building on the Menwith Hill Road site, in his appeal decision dated 15 December 2010, the inspector, David Rose, concluded that "the stated need for the building is unconvincing".

In addition, in the claimant's reasons for their decision of 14 January 2008 (paragraph 31 above), they set out a number of reasons why this barn was not reasonably necessary for the purposes of agriculture within the defendants' farm. There has never been any detailed or considered response to that reasoning.

Thus, whilst it might be said that the barn that has now been partially constructed is slightly smaller than the building under consideration in those two appeals, that same general position still applies. It is unrealistic to consider the issue of 'reasonable need' from anything other than the starting point that it has previously been found, by inspectors and the claimant alike, that there was no such need for this building.

7.4 The Single Joint Expert

Perhaps because of this history, the defendants were keen for the appointment of a Single Joint Expert ("the SJE") to address afresh the question of whether or not the barn was reasonably necessary for their farming business. Mr Michael Greetham was duly appointed. They will have been disappointed by his negative conclusions on that issue.

I should say at the outset that I understand some of the criticisms made by Mr. Walker of the SJE's report and subsequent answers to the parties' questions. The report is over-long and in places unfocused. At times the SJE strays outside the relatively narrow confines of the issue with which he was asked to deal. Moreover, nowhere does he say in simple terms that in his view the building is not reasonably necessary for the purposes of agriculture within the unit.

However, in defence of the SJE, I consider that at least some of those criticisms arise because the SJE was trying to be as careful and as helpful as he could be, and was endeavouring to deal with the detail of the farm as it now operates, and the suitability of the barn. In such circumstances it would be wrong to be too critical. Furthermore, on the essential points, I am in no doubt that, on any fair reading of his report and his subsequent answers, the SJE was firmly of the view that this barn was not reasonably necessary for the purposes of agriculture in the unit.

It would be unnecessarily wearisome to set out all of the relevant parts of the SJE's report. However, I regard section 8 of the Report (entitled 'The Need for an Agricultural Building') as particularly important. Having dealt with various aspects of the barn in detail by reference to what an agricultural business such as that of the defendants might require, the SJE summarises the most important ways in which reasonable necessity has not been shown:

"8.13 Unfortunately I conclude that the building that is in the process of construction at Meagill Lane is not suitable for the purpose that the defendant, or indeed any farmer farming that holding, would require. The reasons are as follows:

8.13.1 The roof structure is not suitable for the operation of modern farm machinery.

8.13.2 The wall structure does not lend itself to adequate ventilation.

8.13.3 Roof lights are able to aid ventilation but they will themselves not be useful for ventilation where hay and straw is stored as, when open, water will get in which will destroy the quality of hay and straw but could also lead to spontaneous combustion."

One of the points made throughout the report is the absence of proper ventilation. The SJE points out at paragraph 8.14 that barns that provide proper ventilation are of a "vastly different" construction. Furthermore, at paragraph 8.15, the SJE also explains that adequate ventilation is one of the reasons why traditional barns are no longer used.

The SJE makes a number of important criticisms of the existing building. At paragraph 10.5 he deals with whether the existing building could be used for sheep production. He says that if the open wall was filled with Yorkshire boarding from a height of say 1.5 metres then it may be that sufficient ventilation could be provided, but that would not provide the security that the defendants want.

I note that in any event, these and other suggestions are all modifications to (and therefore formed no part of) the original application. This again highlights the irreconcilable difficulties inherent in the claimant's claim: on the one hand they say that they have planning permission by virtue of their application of 3^rd December 2007; whilst on the other, they are prepared to make so many modifications to that proposal that it bears less and less resemblance to the building for which they say they have permission.

Amongst the SJE's conclusions in his report are the following:

"11.1 In my professional opinion the building at Meagill Lane, Blubberhouses is not an agricultural building

…

11.3 The building is not adequately ventilated and is not of the size and shape or provided with the appropriate roof structure for an agricultural application.

11.4 A building suitable for housing sheep is required on site, but this more likely to be 300 metres squared of a single span portal frame construction with Yorkshire boarding for ventilation and a solid corrugated coloured roof.

11.5 The defendant has suggested the building could be used for mushroom production. However there is no supply of electricity and water to the site. The defendant's costings for mushroom production are ambitious. More importantly mushroom farming is not dependant on the site it could be followed elsewhere in a lower cost and more suitable building.

11.6 The provision of Yorkshire boarding to the open wall of the existing building either instead of or in addition to full height doors may make it possible to use the building for sheep production."

In answer to questions raised by the defendants the SJE reiterated his view that the questions, and the answers, did not alter his conclusion. In particular:

(a) At paragraph 4.8 he repeated his view that:

"I do not believe the style and design of the building at Meagill's Lane is suitable for storing hay and straw. I also believe that if a larger or more elaborate building is constructed over and above that which is 'reasonably necessary' the additional cost of the construction is a relevant factor and must be considered."

(b) At paragraph 4.16 he considers the defendant's suggestion that roof lights would be used that also provided ventilation and repeats that he is not aware of any design of roof lights which would allow ventilation as well as insuring that rainwater and roof surface water cannot enter. He went on:

"I am specifically concerned with the open aspect of this site and its elevation. Any design has to ensure that driving rain does not enter given high wind speeds at this site which means that driving rain is a significant risk."

(c) In his conclusions in Section 5 the SJE said:

"5.3 In my opinion the building at Meagill's Lane is not an agricultural building, primarily because I do not believe that it is fit for purpose.

5.4 I can understand that a farmer may seek to provide 400 square metres, however, I believe that he would choose a different style of building and possibly two smaller buildings each with different ventilation provisions."

Although the SJE provided a further email on 14^th September 2012, it does not add anything. Neither does the second statement from Mr. Crossland, which was provided so late that the SJE was unable to deal with it. That further statement merely seeks to make further points about ventilation, the difficulties with which the SJE has already addressed, and again seems to me to move still further from the design of the barn as outlined in the original application of 3^rd December 2007.

7.5 Summary

On the basis of the views expressed by previous inspectors and the claimant (see Section 7.3 above), and the evidence of the SJE (Section 7.4 above), I conclude that this partially-built barn was not reasonably necessary for the purposes of agriculture within the defendant's farm. It was not designed for the purposes of the activities which the defendants might reasonably conduct on their farm. In essence, it is too big; it has a roof that is not fit for its purpose (probably because it was originally designed and/or used on another project entirely); and it does not have adequate ventilation and/or security.

It appears that the defendants have always wanted a large barn on this site, and they are quite happy to build the barn first, and then work out what to use it for later. That explains the belated references to the possibility of sheep production and mushroom farming (the latter of which is now accepted as being an unrealistic use of the building). The fact that the defendants have themselves been unclear precisely how to use this building demonstrates all too clearly that it is not reasonably necessary for their purposes.

Throughout his submissions, Mr. Walker made a number of references to the fact that a building (of some kind) was reasonably necessary and that, therefore, this barn should not be criticised or condemned merely because it might be found to be too big or built to a design that might be thought of as being unfit for its purpose. In my view that approach applies the wrong test. The only issue is whether this barn is reasonably necessary for the purposes of agriculture in the unit. For the reasons that I have given, the evidence points overwhelmingly to the conclusion that this barn is not reasonably necessary. I therefore determine this issue in the claimant's favour.

In consequence, this application fell outside the development permitted by the GPDO, and no planning permission for the barn has been granted. I consider the next issue only if I am wrong as to reasonable necessity.

8. ISSUE 3: WAS THERE PLANNING PERMISSION UNDER THE GPDO?

8.1 The Relevant Authorities

In order for the planning process under Class A.2(2) to be effective, there has to be a valid application which complied with the procedural requirements of the GPDO: see R v Caradon District Council (1999) 78 P&CR 243. In that case, the developer's written application purported to reserve to himself the choice of materials to be used. He declined to answer the LPA's request as to what specific materials he proposed to use. In consequence, the LPA declined to register the application as a valid one and the developer's challenge to that decision failed, the judge finding that the absence of specificity in the application rendered it invalid.

However, the LPA must be careful to distinguish between applications which do not meet the requirements of the GDPO (which would render the application invalid) and applications which may not be in the form which the LPA require but which are nonetheless valid applications. In Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, [2012] 1 P & C.R. 6, an application was received by the LPA on 01/12/08. The LPA said that the application was not in proper form because it did not include copies of various documents. The LPA replied to the developer to say that the statutory period for determination of the application could not commence until those requirements had been fulfilled. The further information was received by the LPA on 09/12/08. The application was determined on 31/12/08. That was more than 28 days after the original application had been received but within time if the original application was deemed to be valid only on 09/12/08.

The Court of Appeal held that the LPA erred in failing to deal with the application at the outset. The fact that they required the application to be in a particular form, and required further copies of plans and the like, did not mean that the original application had not been validly made. Thus permission for the development accrued under the GPDO 28 days after 01/12/08, such that the council's determination of 31/12/08 came too late. This decision was unaffected by the fact that the developer complied with the request to submit new forms and other information. Richards LJ said (at paragraph 17 of his judgment) that the 28 day determination period ran from the date of receipt of the written description of the proposed development by the local planning authority which, on the facts, had occurred on 01/12/08.

The two paragraphs of the judgment of Richards LJ of particular relevance to the present case are paragraphs 34 and 38:

"34. Since the application was valid, the 28 day period referred to in paragraph A2(2)(iii)(cc) began to run on 1 December, despite the council's assertion to the contrary. Mr Kolinsky sought to rely on the absence of any challenge at the time to the council's 'decision' that the application was invalid. The GPDO, however, does not make the running of time dependent on a decision by the local planning authority to accept an application as valid. Whether there was a valid application or not is an objective question of law…

38. With great respect to Beatson J, I cannot accept the reasoning upon which he decided the case in favour of the Secretary of State. No doubt the inspector took a practical approach, as the judge said at paragraph 34 of his judgment, but practicality cannot displace the legal effect of the GPDO. So too, although it is no doubt true that the delay of a few days did not of itself cause the appellants prejudice, the start-point and end-point of the 28 day period are fixed by the terms of the GPDO and the question of prejudice is of no legal relevance. Further, it cannot be right, as suggested by the judge, that the letter of 1 December was effectively stating that prior approval was required, so as to take the case into the second stage. That is not what the letter states, nor can it be implied: since the letter asserted in terms that there had been no valid application, it cannot have been purporting at the same to make a determination, pursuant to the application, that prior approval was required…"

As to the effect of the non-payment of the relevant fee, I was referred to the decision of Foskett J in Infocus Public Networks Limited v Secretary of State for Communities and Local Government [2010] EWHC 3309 (Admin). This was concerned with the problem created by the fact that an application could be made online, whilst the relevant fee could not be paid online and had to be paid by a separate means, ordinarily by a cheque sent separately. Foskett J said at paragraph 11 of his judgment:

"…However, the point is somewhat academic: since payment of the relevant fee is required to "accompany" such an application (along with the other matters specified), there can be no doubt that the planning authority would be entitled to treat non-payment of the fee as invalidating the application (just as a failure to supply the other material specified would also constitute such a justification) at least until it was paid…"

The judge went on to say that the first issue for him was whether, and if so when, an effective or valid application was received by the local planning authority.

None of these authorities deal with the specific issues that arise in this case. The only case dealing with the possibility that an invalid application could subsequently be validated is Infocus which suggests that this is principally a matter for the LPA. There is no authority as to the legal consequences if an invalid application is later "validated" by a subsequent event and nothing which deals with the consequences if the LPA deals with an application as if it were valid, even though at the time, a part of the fee remained outstanding.

8.2 What If There Were Two Applications?

I have already found as a fact that the defendants intended the application of 22^nd December 2007 to be a separate application from the one made on 3^rd December 2007. Whilst that is not the argument now put forward by Mr. Walker, it seems sensible to address it at the outset, in particular because any consideration of that proposition quickly demonstrates why Mr. Walker did not pursue it at trial.

If there were two applications then, irrespective of the validity or otherwise of the first application, made on 3^rd December 2007, there can be no doubt that the application of 22^nd December 2007 was invalid. That was because it was accompanied only by the payment of £5. Accordingly, to the extent that the defendants were saying to the claimant that the claimant had wholly failed to deal with their application on 22^nd December 2007 (as they did say at the time: see paragraph 27 above), there was a simple answer to the criticism: the application was not accompanied by the correct fee and was therefore invalid. There was therefore nothing the claimant was required to do in connection with it.

Doubtless in the light of that difficulty, the defendants now put forward a rather more sophisticated argument which seeks to ignore that which they intended on 22^nd December 2007. Now they say that the payment of £5 was designed to validate the first application. Indeed, that the £5 was to be ascribed to that first application seems to be common ground: it was certainly how the claimant dealt with it at the time. But there is, of course, now a sting in the tail, because the defendants argue that, if their application was only validated when the claimant received £5 on 27^th December 2007, then anything which had happened up until that time in connection with the application, including the claimant's notice of 17^th December 2007, was irrelevant and, to quote Mr. Walker, "as invalid as the original application".

8.3 Was The Notice of 17^th December 2007 Irrelevant and/or Invalid?

I am no doubt that, for a variety of reasons, set out below, the notice of 17^th December 2007 was neither irrelevant nor invalid, but was instead a valid notice pursuant to A2(2)(iii)(bb) of the GPDO.

The first point to make is that, on one view of the A2 Conditions, an application is either valid at the time that it is made, or it is not. There is nothing there which expressly permits subsequent validation. Thus, on a very strict reading of these conditions, the application made on 3^rd December 2007 was invalid (because only 90% of the fee had been paid) and it was never validated because, in the absence of any express statutory provision allowing subsequent validation, that was simply not possible. Moreover, support for that approach could be found in the second letter on 22^nd December 2007, which was intended at the time to be a separate application, rather than the missing piece of the original jigsaw.

Such a strict reading of the conditions seems to me to be entirely consistent with the decision of the Court of Appeal in Murrell. Whether an application is valid or it is not is an objective question of law; on that approach, it could be said that the application of 3^rd December 2007 was invalid and was therefore always invalid.

Now let us assume that such a construction of the GPDO is, despite the terms of the judgment in Murrell, too restrictive an interpretation of the relevant conditions. Let us assume that, as a matter of practicality, an original invalid application can be rendered valid by, for example, the payment of the right fee. Then the questions become: does the payment of the right fee some time later automatically validate the original application at the time when the subsequent event occurs; does that render all prior events irrelevant and of no legal effect; or are these matter in which the LPA has a discretion?

In my view, these are matters for the discretion of the LPA. Here it was the defendants who chose to pay the incorrect fee, paying 90% of the proper fee but withholding the remaining 10%. The claimant immediately notified the defendants of the missing £5 but, at all times, the claimant elected to treat the application of 3^rd December as being valid. They did not assert otherwise either before or at the time they served their counter-notice on 17^th December 2007. In this way, the claimant acted sensibly in seeking the remaining £5, but electing to treat the application as valid and therefore serving the necessary counter-notice. Since there was nothing in the Class A2 Conditions that expressly allowed after-the-event validation, there was also nothing to prevent the claimant from treating the application as valid as at 17^th December, notwithstanding the missing £5.

The claimant dealt with the application on its merits on 17^th December 2007, on the implied condition that the application would subsequently be validated by the payment of the missing £5. That was what happened. That was a sensible and practical approach. On that basis, the notice of 17^th December 2007 was neither invalid nor irrelevant.

In reaching the conclusion that it was up to the LPA how to deal with this particular application and how to treat it, I consider that I am adopting the same approach as Foskett J in Infocus. He stressed there that it was a matter for the LPA as to how they treated an application which was not accompanied by the fee. Moreover, I do not consider that my conclusion is contrary to that of the Court of Appeal in Murrell; they were dealing with a completely separate problem (namely a valid application that the LPA mistakenly believed was invalid) and therefore did not address the problem of after-the-event validation at all.

As a separate answer to the defendants' submissions, I would also conclude that, contrary to Mr. Walker's submissions, there is no principle of law which dictates that the defendants' default in failing to pay the correct fee at the outset meant that the claimant's counter-notice of 17^th December 2007 was invalid. Even if the original application was invalid as at 17^th December 2007, that was not a point that the claimant was choosing to take (again, in stark contrast to the position of the LPA in Murrell). The letters from the claimant of 13^th and 17^th December 2007 do exactly the opposite: they make plain that, despite the missing £5, the application is being treated as valid. Accordingly, for that reason too, I find that the letter of 17^th December 2007 was neither irrelevant not invalid.

Finally I note that the possibility that the parties may take particular steps pursuant to this process, even in the absence of a valid application, appears to be envisaged by the A2 Conditions in any event. I note, for example, that the 5 year period in (iv)(bb) runs, not from the date of a valid application being received, but the date of the provision of the "written description of the proposed development and of the materials to be used and a plan indicating the site". In other words, the five year period runs from when the information is provided, which might have been before a valid application was made (because, for example, the wrong fee was paid originally) or after a valid application was made (because the LPA went back to get missing information following the original application). That supports the view that, regardless of the validity or otherwise of the original application in the present case, the claimant was entitled to serve its counter-notice in any event.

For all those reasons, therefore, I conclude that the notice of 17^th December 2007 served by the claimant on the defendants was a valid notice pursuant to Condition A2(2)(iii)(bb) of the GPDO.

8.4 Was There A 'Determination' Under A2(2)(iii)(cc)?

I accept Mr. Hunter's separate submission that the defendants cannot argue that they had planning permission by default because they cannot show that they came within A2(2)(iii)(cc). Planning permission by default occurs after "the expiry of 28 days following the date on which the application was received by the LPA without the LPA making any determinations as to whether such approval is required…" (emphasis added). It is agreed that the application was received by the LPA on 12th December 2007. Within the 28 days thereafter, the defendants received a determination from the claimant that prior approval was required. That was, of course, the letter of 17^th December 2007.

Accordingly, even leaving aside the issue as to the validity of the letter as a counter-notice under A2(2)(iii)(bb), it was on any fair view a determination under A2(2)(iii)(cc). Therefore, in my view, the existence of that letter at the very least prevents the defendants from claiming planning permission by default.

8.5 If the Notice of 17^th December 2007 Was Invalid or Irrelevant, Did the Defendants Acquire Planning Permission by Default?

Now let us assume that I am wrong in concluding that the notice of 17^th December 2007 was valid or relevant under A2(2)(iii)(bb) and/or (cc). The next question is whether or not, on that assumption, the defendants are right to say that they have acquired planning permission for the barn by default. By reference to the notice/letter of 14^th January 2008, I am in no doubt that such a submission is erroneous, and they did not acquire such permission.

I consider that the defendants' arguments completely overlook the claimant's decision of 14^th January 2008 and the formal notice of that decision, sent the same day, refusing approval of the details of the development (paragraphs 31 and 32 above). That notice said that the claimant, being the LPA "for the purposes of the application received on 12 December 2007 for Prior Approval of the details of the development described above, have resolved to REFUSE approval of the details of the development." It then went on to set out the two reasons for that decision.

Accordingly, there is no reason why, even if the notice of 17^th December 2007 was invalid or irrelevant, the notice of 14^th January 2008 was not a notice pursuant to A2(2)(iii)(bb) saying that prior approval was necessary, and also a notice that prior approval of the siting, design and external appearance of the building was refused. The reason that this is done in two stages is to permit consultation: see A2(2)(iv). But here, consultation was carried out promptly, so that both the notification of prior approval and the refusal of such approval could properly be given in the same notice. Mr. Walker properly conceded that, as a matter of principle, one letter could do both things. To the extent necessary, I find that this is what happened here.

This is not a situation like Murrell, where the LPA were seeking to argue that their letter, which said that the original application was invalid, was also dealing with that application on its merits. Unsurprisingly, the Court of Appeal declined to adopt such a 'cake and eat it' approach. But here, even if one leaves the counter-notice of 17^th December 2007 out of account, the notice of 14^th January 2008 can only be read in one way: namely that the claimant considered that this was an application which required prior approval, and was an application in respect of which prior approval was refused. The defendants had no discernable answer to the merits of that submission. I find, therefore, that it is a separate reason why the defendants did not achieve planning permission by default.

8.6 A Common Sense Solution

Judges should be wary about describing their conclusion as a common sense answer to the problem posed. But I am bound to say that I consider that the conclusion that the claimant acted properly and fairly, whilst the defendants' case was a mix of the technical and the sly, and should fail, is a result which would generally commend itself as a practical and sensible outcome. Anything else would result in an injustice and would come uncomfortably close to allowing the defendants to take advantage of their own wrong.

Because I have dealt with the planning issue in the way that I have, I have not found it necessary to reach a concluded view on the subsidiary argument put forward by Mr. Hunter that, in reliance of the speech of Lord Hailsham in London and Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182, any error in procedure by the claimant was so nugatory or trivial that it should not be held against them. This is sometimes known as the doctrine of 'substantial compliance'. However, this part of the judgment of Lord Hailsham's was obiter and is not commonly cited as an approach to statutory interpretation. Moreover, I consider that there is force in Mr. Walker's submission that planning requirements need to be clear and certain, a view supported by the Court of Appeal in Murrell.

In the end, this is not really a case about substantial compliance or otherwise. It is a case where, despite the defendants attempts to 'play the system', they knew – because the claimant told them – that permission for this barn had been refused for the fifth time. In those circumstances, the argument that they some how achieved planning permission by default does not, in my judgment, get off the ground.

9. ISSUE 4: HAS THERE BEEN DECEPTION IN THE PLANNING PROCESS?

9.1 Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and Anor [2011] UKSC 15; [2011] 2 AC 304.

This case concerned an application for planning permission to erect a hay barn in circumstances where the intention was always to construct a dwelling house. The Supreme Court held that the positive and deliberately misleading false statements by an owner, which successfully prevented discovery of the true position, put the case outside the general rationale of planning legislation and that positive deception in matters integral to the planning process, which undermined the operation of that process, was a factor to be taken into account in applying the relevant legislation. In that case it provided an answer to the developer's case that the relevant default period had elapsed and that enforcement action could no longer be taken.

9.2 The Facts Of The Present Case

In the present case, there were two separate actions by the defendants which could be regarded as an abuse of the planning process. The first was the decision to pay £45 instead of £50. I am in no doubt that the defendants knew that the correct fee was £50, and they paid a lesser amount because they thought that this might give them an advantage of the sort that they had unsuccessfully maintained in the Menwith Hill Road dispute (see paragraphs 14-16 above).

Secondly, as set out in paragraphs 26-27 above, I find that they made what they thought was a second application on 22^nd December 2007 in the hope that the second application would not be dealt with separately and would therefore give them an argument that they had acquired planning permission by default.

However, unlike in Welwyn Hatfield, there was no outright deception: they were not saying one thing whilst doing another. It is not said by the claimant that the defendants were making an application for a barn when they intended to build a dwelling house. Furthermore, again unlike in Welwyn Hatfield, the claimant was never under any illusion as to what the true position was. They knew that the original fee had not been paid; they knew that there had been a second letter. They chose to deal with that second letter by ascribing the £5 to the application of 3^rd December 2007 and I have found that they were entitled so to do.

To the extent that it was suggested that the defendants acted in the way that they did so as to give rise to the argument that the counter-notice of 17^th December 2007 was invalid, I reject that submission. That argument was, with respect to Mr. Hunter, too lawyerly; it was not the sort of argument that would have occurred to the defendants at the time and it was not suggested to them that it did.

9.3 Analysis

For the reasons set out is Sections 7 and 8 above, I have concluded that there was no planning permission under the GPDO. It is therefore unnecessary for me to make any findings as to deception in the planning process, because that would only have been relevant if I had been against the claimant on those issues. However, I can see that, in two respects, my analysis of this aspect of the case may be of some relevance so I set out brief conclusions below.

First, I should reiterate that, if I was wrong to conclude that planning permission by default had not been granted, then I would not have concluded that the defendants should have been deprived of their victory on that point as a result of any alleged deception. That is for the reasons noted above. This was not a case of deception; this was not a case which, on its facts, was as strong as that in Welwyn Hatfield. In any event, this was not a case where the claimant was misled into dealing with an application which was not in fact genuine.

However, for other purposes (and in particular in relation to the application for an injunction dealt with in Section 10 below), it is plainly of relevance that, in my judgment, the defendants sought to abuse the planning process. The first abuse was the deliberate non-payment of the correct fee; the second abuse was the making of what they considered at the time was a second application on 22^nd December 2007. Both of these matters were designed to create confusion and to give them, the ability to argue, as they subsequently have done, that they achieved planning permission by default. Their willingness to play the system in this way must be a factor which I should take into account when considering the application for an injunction.

10. ISSUE 5: SHOULD AN INJUNCTION BE GRANTED IN ALL THE CIRCUMSTANCES?

10.1 The Relevant Authorities

The principal authority as to the granting of an injunction in a case of this sort is South Bucks District Council v Porter and Anor [2003] UKHL 26; [2003] 2 AC 558. General guidance as to how the court should exercise its discretion when considering whether or not to grant such an injunction was set out by Lord Bingham at paragraphs 27-30 of his speech. At paragraph 29 he said:

"Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or an apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corporation v Bovis Construction Limited [1992] 3 All ER 697, 714), that would point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay…in cases such as these the task of the court may be relatively straight forward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant."

Their Lordships were also keen to stress that a court considering an application for an injunction was embarking on a different process to that of a planning inspector. At paragraph 30 of his speech, Lord Bingham said:

"An application by a local planning authority under Section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton [1995] 3 PLR 8) that a local authority should have had different spending priorities."

Lord Clyde put the same point in this way:

"71. In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed the authority the court is not embarking upon a re-assessment of what was decided as a matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction."

Accordingly, as Lord Clyde put it earlier in his speech at paragraph 65, there was no reason why the court should not take into account what effect an injunction might have on the personal circumstances of the defendant and that, as he noted at paragraph 73, would involve a consideration of questions of hardship. They are matters which Lord Hutton defined as "the human factor": see paragraph 84 of his speech.

In the light of those speeches I have not only considered carefully all of the relevant documents but, on the afternoon of the first day of the trial, I went to Nidderdale to inspect the barn and its location myself.

10.2 If No Valid Planning Permission

For the reasons set out in Sections 7 and 8 above, I have concluded that there was no valid planning permission for this barn. In those circumstances, I consider that there is an overwhelming case for the court to exercise its discretion in favour of an injunction, requiring the demolition of the partially-built barn. There are a whole raft of reasons why that is the case. I note them briefly below.

(a) Planning History

The history of the planning applications in relation to this barn is set out in Section 2 above. As I have shown, the defendants made repeated applications for planning permission for this barn, and those applications have been repeatedly refused, first by the claimant, and then on appeal by the planning inspector. An injunction would lead to the demolition of a barn which, as those applications and appeals make clear, should never have been built in the first place.

(b) Planning Merits

Although it is inappropriate to place too much emphasis on my views as to the planning merits, it does need to be said that, whilst my site view made plain Nidderdale's status as an AONB, it also demonstrated that, in my judgment, the barn is quite out of keeping with its surroundings. It is a disproportionately large building which, given its isolated location, dominates the landscape to an unfortunate extent. And its external appearance, of vertical crazy-paving (dealt with in greater detail in paragraphs 129-130 below) is far removed from the traditional stone-coursed Dales barn which can be seen in the area and which this was promised to be. In short, I consider the building to be jarringly out of place.

The attempt to suggest that the proximity of the listening stations and the wind farm means that a less strict view should be taken of the AONB is hopeless. For one thing, they are all to the south/east of the building, and downslope, so that from most directions, they cannot be seen. In addition, particular planning considerations apply to structures considered necessary for this country's security needs and energy provision which manifestly do not apply to this barn.

(c) Breach of Enforcement Notice

The absence of planning permission puts the defendants in breach of the Enforcement Notice. That creates a criminal liability. For the reasons set out in Section 6 above, because the defendants can never have thought that the position was entirely clear cut, they plainly took a risk that, by starting the development of the barn, they were committing a criminal offence. That is a factor which plainly weighs in the balance against them.

(d) 'Playing the system'

For the reasons set out in Section 9 above I have concluded that, at least in two respects, the defendants deliberately sought to play the planning system. That was therefore an abuse of that system. Whilst I have made plain that I do not consider that their conduct could be described as deception, and although I have found that the claimant was not actively misled, the fact remains that the defendants' conduct was reprehensible.

(e) Not reasonably necessary

For the reasons set out in Section 7 above, I have concluded that, although his report was not couched in helpful language, and did not restrict itself to the only relevant issue, the Single Joint Expert has concluded that this barn was not reasonably necessary for the purposes of agriculture within the unit. Thus the whole application was flawed from the outset. Moreover, that was a fundamental deficiency of which the defendants were aware, because it was the point that had been repeatedly made by previous inspectors when refusing their appeal against the claimant's decision to refuse planning permission.

(f) Continuing Works

It is also a matter of regret that, even when the claimants found out about the works, and told the defendants to stop, they did not do so. Indeed, not even the commencement of these proceedings brought the building works to a halt. I find it difficult to comprehend how or why the defendants continued to build the barn, in all the circumstances of the case, when they knew that the claimant's position was that there was no valid planning permission, unless it was to try and put themselves in the best possible position to argue that the status quo – and therefore the barn – should be preserved.

(g) Wider considerations

There are obviously wider considerations. This was a barn, permission for which had been repeatedly refused. The defendants built it regardless of those refusals and in circumstances where they must have known that they did not have planning permission. It would render the entire planning system otiose if applicants such as the defendants were rewarded for their intransigence by a decision which allowed them to keep the barn built in such wilful disregard for the claimant's previous decisions. To use the vernacular, the defendants would be widely perceived to have "got away with it", thus encouraging others to take a similarly stubborn and one-eyed approach to their planning application.

(h) Possible Factors Against Granting The Injunction

What are the factors against granting an injunction? The only real argument put forward by Mr. Walker is the fact that, on the defendants' case, they have spent £100,000 on the barn and that it would cost them another £40,000 to demolish it. I was warned that, in such economic circumstances, such expenditure ran the risk of driving the defendants out of business. However, for the reasons set out below, I cannot accept the assumptions that underpin this submission.

There is nothing, beyond a simple assertion by the first defendant, which demonstrates that the partial construction of the barn cost anything like this sum. There are no records evidencing any figures at all. If the defendants had spent as much as £100,000 on the barn, I consider that they would inevitably have records of quotations, invoices and receipts. Not one such record has been provided. Moreover, I note that the SJE also queried the £100,000 figure, suggesting that it was much too high. Although the first defendant has tried to deal with everything raised by the SJE with which he disagrees, he has ignored that matter altogether.

Of course, it is a great shame that, when the injunction is granted, any money that the defendants have spent on the barn will be wasted. But the defendants knew or must have known that they were spending such money at their own risk. That is the relevance of their continuing the build even after the claimant told them not to. This was a deliberate decision to build as much of the barn as possible so that they could better run the argument that it would be a waste if it was demolished. That is another way of effectively playing the system. I cannot refuse the injunction because it would involve the defendants in wasted expenditure in circumstances where the defendant has caused that waste themselves.

There are no other reasons against granting the injunction. The barn is not reasonably necessary; it is contrary to the planning policies for the reasons enumerated by all of the different inspectors who have considered the proposal over the years; and it should never have been built.

For all those reasons therefore, I am in no doubt that I should exercise my discretion in favour of granting the injunction sought by the claimant requiring the barn to be demolished.

10.3 What If Planning Permission Had Been Granted In Default and The Barn Was 'Reasonably Necessary'?

For completeness, I consider the position if I was wrong on the two principal issues, namely planning permission and the reasonable necessity of the barn (Sections 7 and 8 above). Even if I were wrong on both of those points, I would still exercise my discretion in favour of granting the injunction. There are two separate reasons for that developed in greater detail below. The first is that the barn as built does not comply with the original application. The second is that the planning permission lapses in one month's time and the barn is far from being complete.

As noted in paragraph 41 above, if planning permission in default had been granted, then pursuant to A2(2)(iv) the construction had to be carried out "in accordance with the details approved". For the purposes of this exercise, that means the details set out in the application of 3^rd December 2007.

In my judgment, the barn as built does not comply with that application in a number of respects. For these purposes, it is only necessary for me to identify some of the most significant discrepancies.

First, the barn looks nothing like the computer-generated image that was sent with the application, which also referred to a 'Dales Barn' as traditionally created in the area. The stonework of a traditional Dales Barn, and the stonework shown in the computer-generated image, is laid in courses.

On approaching the barn for the first time, the observer is immediately aware that there is something odd in its appearance. It takes a moment to realise precisely what it is. It is that the stonework is not laid in courses; instead, the stones have been applied in what is referred to in the papers as a "crazy paving" style. There is no regularity at all. The effect is wholly out of keeping with other stone buildings in the area and it means that, in this critical respect, the barn simply fails to comply with the application. Planning permission, therefore, has not been granted, even on the defendants' case, for the irregular stone barn that has been constructed.

Secondly, the roof construction of the barn as built is massive, involving large steelwork girders. At one part of the roof, it is stepped, such that the slopes are at different heights. It appears that the reason for this is that the steelwork comes from a different project and is being utilised by the defendants as best they can on this barn.

No mention of this singular roof is made in the application, which merely refers to a blue/grey tile covered roof. I reject Mr. Walker's submission that there is no discrepancy between the simple application and the complicated reality. It is not enough simply to refer to 'a roof', if the applicant intends to construct a particular type of roof (which in this case is to be dictated by another project altogether). Otherwise, the application could simply refer to a roof, whilst the construction might look like the Sydney Opera House.

Other examples of the discrepancies include the failure to mention in the application the huge sliding doors, or the many other doors, which the first defendant now says will be incorporated; and the failure to mention the 8 windows which are now proposed.

Accordingly, if there was valid planning permission, it was not for the barn as built. That would then lead me to conclude that the injunction should be granted in any event.

Secondly, I am supported in that view by the fact that pursuant to A2(2)(vi)(bb), the development was to be carried out within 5 years from 12^th December 2007. Accordingly, that period comes to an end in less than a month's time. The barn has not been completed and the alleged planning permission will have lapsed. There would then be a further round of arguments, and the barn may never be completed. Given all the other circumstances, particularly the history, I consider that it is therefore better for the barn to be demolished in any event.

11: CONCLUSIONS

For the reasons set out in Section 7 above, I have concluded that the defendants do not have planning permission for this barn because it is not reasonably necessary for the purposes of agriculture within the unit.

For the reasons set out in Section 8 above, I have concluded that the defendants do not have planning permission in default because of the claimant's letters of 17^th December 2007 and/or 14^th January 2008.

As a result of those two conclusions, but also in consequence of the terms of the Enforcement Notice (Section 6 above), the defendants' conduct (Section 9 above) and all of the other factors mentioned in Section 10.2 above, I have concluded that an injunction should be granted in the terms sought by the claimant. This would lead to the immediate demolition of the barn. In all the circumstances, I consider that to be the only appropriate result.

Even if I was wrong about both planning permission issues, I would still order an injunction requiring the demolition of the barn for the reasons set out in Section 10.3 above.

I trust that this Judgment will be sufficient to allow counsel to draw up the appropriate orders. I will deal separately with all questions of costs.

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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Harrogate Borough Council v Crossland & Anor [2012] EWHC 3260 (QB) (20 November 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/3260.html Cite as: [2012] EWHC 3260 (QB)

		Leeds Crown Court 1, Oxford Row Leeds, LS1 3BG
		20th November 2012