Neutral Citation Number  EWHC 2758 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Friday, 12 November 2004
B E F O R E:
MR JUSTICE SULLIVAN
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THE QUEEN ON THE APPLICATION OF DENNIS
SEVENOAKS DISTRICT COUNCIL
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR D EDWARDS and MR J PIKE (instructed by Richard Buxton & Co) appeared on behalf of the CLAIMANT
MR R LEWIS (instructed by Sevenoaks District Council) appeared on behalf of the DEFENDANT
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE SULLIVAN:
2. In this application for judicial review the claimants seek a quashing order in respect of a decision by the defendant, which was communicated to the claimants in a letter dated 3rd December 2003, that a proposal to create a silage clamp at Hilders Farm, Ide Hill, Bough Beech, Edenbridge, Kent was "permitted development" for the purposes of the Town and Country Planning (General Permitted Development) Order 1995 ("the Order") but was not subject to the prior notification procedure because it did not fall within paragraph A2(2)(a) -- the erection, extension or alteration of a building in Class A, Part 6 of Schedule 2 to the Order.
The statutory framework
3. "Development" is defined by section 55 of the Town and Country Planning Act 1990 ("the Act"). Subsections (1) and (1A) provide:
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
(1A) For the purposes of this Act 'building operations' includes --
(a) demolition of buildings;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder."
4. Section 336(1) defines "building":
"'building' includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building."
5. Planning permission is required for the carrying out of any development (section 57) and may be granted either by a Development Order ("permitted development") or by the local planning authority or the Secretary of State on an application for planning permission (section 58). Article 3 of the Order grants planning permission for the classes of permitted development described in Schedule 2 to the Order. Part 2 of Schedule 2 grants planning permission for a number of minor operations. Class A in Part 2 permits:
"The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure."
6. Part 6 of Schedule 2 deals with agricultural buildings and operations. Class A permits:
"The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of --
(a) works for the erection, extension or alteration of a building; or
(b) any excavation or engineering operations, which are reasonably necessary for the purposes of agriculture within that unit."
7. Paragraph A.1 sets out certain types of development that are not permitted by Class A and paragraph A.2(1) sets out a number of conditions which are not relevant for present purposes. Paragraph A.2(2) is of particular importance in the present case. It provides:
"Subject to paragraph (3), development consisting of --
(a) the erection, extension or alteration of a building;
(b) the formation or alteration of a private way;
(c) the carrying out of excavations or the deposit of waste material (where the relevant area, as defined in paragraph D.4 below, exceeds 0.5 hectare); or
(d) the placing or assembly of a tank in any waters
is permitted by Class A subject to the following conditions --
(i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be."
8. The remaining subparagraphs describe the procedure to be followed when prior approval is required.
9. Paragraph A2(3) is in these terms:
"The conditions in paragraph (2) do not apply to the extension or alteration of a building if the building is not on article 1(6) land except in the case of a significant extension or a significant alteration."
10. Article 1(6) applies to land in the national parks and is not relevant for present purposes. Paragraph D.1 provides that, for the purposes of Part 6, "'building' does not include anything resulting from engineering operations", and it also defines "significant extension" and "significant alteration". Finally, "building" is defined by Article 1(1) of the order:
(a) includes any structure or erection and ... includes any part of a building, as defined in this article; and
(b) ... does not include any gate, fence, wall or other means of enclosure."
11. The claimants live at Hilders, a substantial Grade II listed building which was formerly the farmhouse of Hilders Farm. The farmhouse was sold separately from the farm in the 1970s and purchased by the claimants in 1991. Hilders is immediately adjacent to the farmyard which is to the north. Hilders Farm is a substantial livestock farm comprising some 283 hectares of owned and rented land farmed by Mr Vicary. 73 hectares of land is based at Hilders Farm which is the operational base for the farming enterprise, including Mr Vicary's herd of dairy cattle. Between 2000 and 2001 the herd expanded from 100 cows up to 160 cows and followers. In the summer of 2001 the farmyard contained a range of buildings including various large covered yards, barns and a milking parlour, a collecting yard where the cows wait before and after milking, calf pens and a silage clamp.
12. On 13th July 2001 Mr Vicary applied to the defendant for a determination as to whether prior approval was required for the siting design and external appearance of development which was described as "provision of a silage pit". Details of the application are not included in the court bundle, but the defendant consulted a senior land agent at that time employed by Kent County Council, Mr Lloyd-Hughes, and his letter to the defendant dated 26th July 2001 refers to "the erection of an open silage clamp... 35m x 15m with 2.6m high walls", and states that it was proposed to site the new clamp alongside and to the south of the existing silage clamp, about 30m x 10m:
"Cows have access to the existing clamp for self feeding from the east side, but access to the new clamp would be from the west side, because that is convenient in relation to [a] building and the open yard and space for loading is restricted at the eastern end. The new clamp would be sited on a location where green plastic-wrapped silage bales are currently stored, and would probably be used in the main for maize silage."
13. By letter dated 11th September 2001 the defendant informed Mr Vicary that prior approval of details was required:
"... in order that the full impact of the proposal may be considered having regard to the close proximity of the adjacent residential property, which is statutorily Listed as being of Special Architectural and Historic Interest."
14. Immediately to the south of the existing silage clamp there was an open-sided barn. The barn was demolished on or about 17th September 2001 and a concrete base was laid over the site of the barn and adjoining land to the south. The concrete base was laid by 1st October 2001. Although the claimants described the land adjoining the barn which was concreted over as grassy, and grass can be seen in some of the photographs, Mr Vicary has explained in a witness statement made on behalf of the defendant that:
"Both the floor of the barn and the area immediately adjoining it were hard surfaced, composed partly of concrete and partly of hardcore, including broken tiles. The surface had failed in places, and this had allowed grass and weeds to come through. In addition, grass and weeds were growing on mud that had been deposited on the hard surface by tractors and by the general coming and goings of the farm."
15. In practical terms, from the claimant's point of view the enlarged clamp would be closer to Hilders. In October 2001 Mr Vicary began to use the newly concreted area for the storage of silage. In a letter dated 25th July 2002 to the defendant, Mr Vicary's land agent said:
"I attach a notification in respect of a silage pit to be erected at Hilders Farm ... The pit is to be constructed of metal channels and sleeper walls. The size is 13m x 35m x 2m (maximum).
"The silage is to be cut and fed and is not self-feed. There is an existing arrangement within the farmyard for dealing with run-off water. The fodder is needed to provide winter keep for the dairy herd and followers kept on this farm which extends to about 600 acres."
16. By letter dated 21st August 2002 the defendant stated that full details were required, giving the same reasons as those which had been set out in the letter dated 11th September 2001. Rather than submit details for approval under paragraph 2(2) in Part 6 of the Order, Mr Vicary's agent submitted an application for planning permission on 24th March 2003 for the "erection of a silage pit". The plan accompanying the application showed that the "pit" was to be sited on the newly concreted area and that the walls on the eastern and southern sides, 13 and 35m long respectively, were to be constructed of railway sleepers laid horizontally between vertical 2m high steel channels. The western side was to be left open and the northern side was formed by the southern wall of the earlier clamp. From the photographs it would appear that that wall is of similar construction to the proposed walls.
17. The defendant consulted the claimants as adjoining occupiers and they made detailed representations objecting to the planning application. In August 2003 Mr Sperryn, a senior planning officer employed by the defendant, took over the case from one of his colleagues who had left the defendant's employment. He visited the site in late September and viewed the clamp from Hilders. On 16th October he emailed the claimant's environmental consultant, saying that it appeared that the works undertaken "may not require planning permission. Legal advice has been sought".
18. On 3rd December 2003 Mr Sperryn wrote to the first claimant. So far as material, his letter said this:
"Since our meeting further representations have been made by the applicant's agent to confirm the detailed works involved, and I have made a more detailed examination of the proposals. After considering the matter, it appeared to me that the proposals may benefit from 'permitted development', in which case planning permission may not be required for the creation of the silage clamp. After seeking advice from the Council's Legal Section, this view was confirmed. By way of explanation, I set out in brief the reasoning for this below.
"The relevant legislation is Part 2 and Part 6 of Schedule 2, Article 3, of the Town and Country Planning (General Permitted Development) Order 1995. This legislation provides for certain works to be undertaken without the prior requirement to obtain express planning permission. Whilst silage clamps are not specifically listed, there are 3 main components to examine as to whether the legislation imposes control. These comprise the concrete surface, the erection of a means of enclosure and the use of the hard surface for the storage of silage.
"The creation of a new concrete surface would constitute 'development' as it comprises an engineering operation. However, under the legislation referred to above, as would be the case here, it does not comprise works for accommodating livestock. It does not fall within the exceptions in para A.1(d) of Part 6 and being development which is reasonably necessary for the purposes of agriculture within the unit, it would comprise permitted development and does not require the prior benefit of planning permission. Furthermore, the concrete hardstanding is not subject to the prior notification procedure set out within condition A.2(2) to Class A. Therefore the view is taken that the Council as Planning Authority would have no means nor controlling its siting, form or appearance. Most importantly in the current case however is the fact that the agent has now confirmed that the existing hardstanding would be used and no new hardstanding created.
"With regard to the enclosure formed around the edge of the concrete hardstanding to contain the clamp, as this would not now exceed 2m in height, it too would benefit from being permitted development as a Minor Operation under Class A, Part 2 of the Town and Country Planning (General Permitted Development) Order 1995. Consequently the prior benefit of planning permission would not be required.
"With regard to the use of the concrete pad, a silage clamp comprises an agricultural use, which by definition does not constitute development. In the circumstances, the Planning Authority are not in a position to exercise control over such use. No material change of use would be involved.
"In light of the above and the confirmed nature of the works which are different to those originally put forward, the Council has come to the conclusion that the creation of the silage clamp in this instance comprises works which do not require express planning permission, and do not fall within the remit of the prior notification requirements. This is to be confirmed in writing to the applicants' agents within the next 5 days, who have independently raised the issue of the current proposed works constituting permitted development.
"In doing so the Council recognises that the applicant is entitled to exercise permitted development from within more than one Class of the Town and Country Planning (General Permitted Development) Order 1995. The order is so drafted that restrictions in any one Class do not preclude the benefit of permitted development if specific development is wholly in compliance with the provisions of another Class."
19. By letter dated 5th January 2004 the defendant notified the claimants' solicitors that the planning application had been withdrawn. After correspondence between the parties' solicitors these proceedings were commenced. In its summary grounds the defendant said inter alia:
"1. The proposed 'silage pit' comprises walls made of sleepers, less than 2m in height, which are to be erected on two sides of a pre-existing concrete base.
2. The proposed development is merely the erection of walls, which is permitted development as being a wall or other means of enclosure within Class A Part 2, or, in the alternative, is an engineering operation within Class A(b) of Part 6.
3. If all parts of the construction were to be built together, it might be appropriate to look at the totality of the construction. In this case, the base already exists and the proposal merely consists of two walls."
20. Collins J granted permission to apply for judicial review on a renewed application on 13th July 2004. On 24th August the defendant filed a witness statement of Mr Sperryn. He described what he saw on the site in September 2003:
"4. I saw an existing concreted area, at one end of which silage was being stored under a plastic covering. There was some temporary fencing dividing off the area. On the case file I had seen some photographs taken by Ms Butterfield in May 2003, copies of which I now produce ... It is my recollection that what I saw on my visit was very much the same as shown in the photographs, namely a silage store already in use on an existing concrete base.
5. Having seen the site and examined the planning files in detail, it occurred to me that the proposal might not require planning permission. I was aware of a report, written by another colleague, Gerry Harle, in relation to an earlier application that had been made in relation to the silage clamp, and which sought the Council's determination as to whether its prior approval to siting etc. was necessary. In that report Mr Harle had noted that the silage clamp was on the site of a former barn adjacent to an existing silage clamp. It appeared to me that the base of the clamp had utilised the floor of the former barn, even if some work may have been carried out to it. A copy of Mr Harle's report is now produced ...
6. I had also read two letters on the file from the Council's agricultural consultant, Richard Lloyd Hugues, dated 23 May and 20 June 2003 ... The earlier of the two letters confirmed that silage was being stored on the existing concrete pad. The letter also contained the suggestion that the proposal was permitted development as being a 'minor operation' under Schedule 2 Part 2, Class A of the [Order]. In his second letter, under the heading 'Conclusions', Mr Lloyd Hughes had stated that Mr Vicary had confirmed to him that the concreted area would continue to be used as a silage pad, even if permission was not granted for the surrounding walls.
7. I referred Mr Lloyd Hughes' comments to the Council's solicitor in order to obtain his legal opinion as to whether they were correct. He said that they were. As a result, I concluded that the proposal was permitted development. My conclusion was based on the knowledge that the concrete base already existed and that the proposal, in effect, merely consisted of the erection of walls less than 2m in height. They would form a rectangular structure, enclosed on three sides, and I regarded what was proposed as the formation of an 'enclosure', permitted by the GDPO.
8. It seemed to me that the two elements -- the concrete base and the walls respectively, were two separate schemes, with the former already constructed, in use, and destined to remain in use whether or not walls were later added. Had it been Mr Vicary's intention to construct the silage clamp as a single structure, I would not have thought it appropriate to examine its individual components separately. However, in the light of all the circumstances, I concluded that they were more accurately to be regarded as separate schemes, and I wrote to Mr Dennis on 3 December 2003 confirming that both the base and the walls were permitted by the GPDO."
21. Mr Harle's report had described the proposal in these terms:
"The site of the clamp is to be on the site of a former Atcost barn and adjacent to an existing silage clamp. The pit is to be constructed of metal channels and sleeper walls measuring 13m x 35m x 2m in height."
22. Mr Lloyd-Hughes's letter of 20th June 2003 included the following information:
"As indicated above, the application for the silage walls is currently the only matter for determination: however Mr Kernon, in passing, has stated that the concrete pad itself does not have planning permission, and he also questions whether it is outside the permitted development procedure, (in Part 6 of Schedule 2 of the GPDO) and potentially at risk of enforcement action. I believe this is not the case, for the reasons set out below.
"As I understand the position, the concrete pad (if not merely a repair of an existing surface) would have comprised an engineering operation, not a building."
23. A little later on in the letter Mr Lloyd-Hughes sets out his conclusions:
"I consider the starting point, with regard to the current planning application, is the existence of the concrete pad which has planning consent by virtue of the GPDO. The storage of silage on the pad (either in a makeshift straw clamp, or in plastic bags) is an agricultural use and not development. I see no mechanism under planning provisions for barring this activity, and Mr Vicary has made it clear that in the event of not being able to go to the further stage of erecting permanent walls to the pad, he would continue to use it for maize silage in its current form. Mr Kernon's suggestion that the pad should be abandoned and an alternative pad erected in another location does not appear realistic, nor is it the likely outcome if planning consent for the walls were refused."
24. Mr Lloyd-Hughes' letter of 23rd May 2003 had said:
"As explained in my letters, in my view the chosen site is preferable because it utilises an existing concrete pad, next to the existing open silage clamp used for grass silage, laid to falls to an existing dirty water drainage system. Silage is stored on the pad already (the remainder of last year's maize silage clamp is evident on the site) but apart from the use of the existing sleeper wall to the other clamp on the north side, Mr Vicary has been limited to containment at the sides of the clamp through the use of large rectangular straw bales. This restricts the capacity of the clamp and is less efficient in ensuring a well-sealed clamp (which helps to ensure the maize is in good condition and does not cause odour through rotting).
"I gather if the permanent walling were not approved for any reason, Mr Vicary would investigate other possible options for temporary free-standing containment. It appears inevitable, and indeed appropriate from the point of view of efficient farm management, that storage of maize silage could and would continue in this position in one form or another irrespective of the outcome of this application."
25. In its Detailed Grounds served on 24th September 2004 the defendant said inter alia:
"The Council accepts that, if considered 'holistically', the silage clamp would be a 'building'. However, in all the circumstances the Council was entitled to treat its two elements -- the walls and the floor -- separately. So considered, the clamp was not a 'building' and the prior approval condition did not apply.
"The Council was entitled to treat the two elements separately because:
(i) the floor of the clamp comprised an existing base, the base of a barn that had been demolished; and
(ii) silage was being stored on the base, and would continue to be stored there, whether or not surrounding walls were constructed."
26. The claimants produced further witness statements explaining that the area concreted in September/October 2001 was much larger than the base of the former barn, and included the adjoining land which was grass, not hardstanding. They contended that Mr Sperryn's understanding, as set out in paragraph 5 of his witness statement above, was therefore incorrect. In a second witness statement Mr Sperryn explained that the claimants' assumption was incorrect:
"What I intended to convey in paragraph 7 was that, at the time I made my decision on 3 December 2003, I was aware that the base of the clamp was already in existence. That belief was correct, and Mr Dennis's statement confirms that the base had, in fact, been provided by 1 October 2001.
"On re-reading my first statement, I can understand why Mr Dennis and Mr Kernon [a consultant appointed by Mr Dennis] made the assumption that they did. However, the assumption was not right, and I believe it important that I clarify the point."
27. In Mr Vicary's witness statement he explained:
"In 2001 I re-surfaced the whole of the hard-surfaced area. The new concrete therefore extended beyond the floor of the barn itself, which I demolished, but it did not extend beyond the area that had always been hard-surfaced.
"The purpose of that re-surfacing was not simply to provide a base for a new silage clamp. The hard surface had always been used for general farm purposes, including silage storage, and in particular for providing access for both animals and farm vehicles around that part of the farm. The new surface serves the same purpose, although I am currently storing more silage there than in the past. About three-quarters of the concrete area is taken up with silage storage at the present time. That area will, of course, reduce as the winter progresses.
"I have not constructed sleeper walls for the silage given the present proceedings. The silage is presently enclosed by straw bales. If I am unable to construct sleeper walls I will continue with this method."
28. Mr Vicary has not played any other part in these proceedings.
29. On behalf of the claimants Mr Edwards challenged the defendant's decision on two grounds.
(1) It erred in disassembling the silage clamp into its component parts -- concrete base, walls and use for storage of silage -- and in not considering the proposed development -- the provision of a silage pit or clamp -- in a holistic way as a single scheme or project. He relied in particular upon the decision of the House of Lords in Sage v Secretary of State for the Environment, Transport and the Regions  UKHL 22  1 WLR 983. I take the facts of that case from the headnote:
"The local planning authority served an enforcement notice on a landowner informing him that he was in breach of planning control in partially erecting a dwelling house, and requiring its removal. No building work was carried out on the structure during the four years preceding service of the notice, and the building was unfit for habitation since the ground floor consisted of rubble, there were no service fittings or staircase, the interior walls were not plastered and the windows were unglazed. The landowner appealed against the enforcement notice on the ground that the building was an agricultural building for which planning permission was not required, or alternatively, that the notice had not been served within the time limit of four years after 'the operations were substantially completed' as specified by section 171(B)(I) of the Town and Country Planning Act 1990. An inspector appointed by the Secretary of State rejected the appeal and held that, having regard to the layout and appearance of the building, it was not an agricultural building but a dwelling house, that the time limit of four years did not begin to run until the whole operation of creating the dwelling house was substantially completed and that, as a question of fact and degree, the house was a building in the course of construction and was not 'substantially completed'. The landowner appealed to the High Court on the ground that since all the work remaining to be done on the dwelling house was either internal work or work which did not materially affect the external appearance of the building it was, pursuant to section 55(2)(a) of the Act, work which did not amount to the development of land for which planning permission was required so that there were no further building operations to which an enforcement notice could apply, and that therefore the operations referred to in section 171B(I) must have been completed. The judge allowed the appeal on those grounds and the Court of Appeal upheld that decision."
30. The leading speech was that of Lord Hobhouse, with whom the remainder of their Lordships were in agreement. In paragraph 22 he said that the Court of Appeal's approach was "contrary to the holistic approach upon which this part of planning law is based". He continued in paragraphs 23 to 25:
"23. When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: section 92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage's case. He comes into the first category not the second.
"24. The same holistic approach is implicit in the decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four-year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works. [A number of authorities are cited.]
"25. These decisions underline the holistic structure of planning law and contradict the basis upon which the Court of Appeal reached its decision in favour of Mr Sage."
(2) Even if it was open to the defendant to disassemble the silage clamp into its component parts and consider the walls separately, since their only or principal purpose was to retain the stored silage, as opposed to enclosing an area of land, their construction fell within Class A2(2) in Part 6 -- the erection of a "building" (as defined in Article 1(1) of the Order) -- rather than Class A in Part 2 -- the erection of a gate, fence, wall or other means of enclosure.
31. On behalf of the defendant Mr Lewis accepted that if it had been considered "holistically" the silage clamp would have fallen within the definition of "building" within Article 1(1) of the Order. The defendant acknowledged that if a proposal in reality constituted a single scheme, then it would be impermissible artificially to divide it into segments for the purposes of planning control. Thus enforcement action could be taken against the whole of a scheme, even if an individual component, considered in isolation, would be immune.
32. The parties are agreed that whether a particular proposal or project does constitute a single scheme or more than one scheme will be a matter of fact and degree in each case to be determined in the light of all relevant circumstances. Since the issue is one of fact and degree, the parties are further agreed that the decision-maker's judgment as to whether particular works constitute one or more operations will be vulnerable to legal challenge not upon the merits, but only upon conventional judicial review grounds.
33. Mr Lewis submits that Mr Sperryn considered whether the construction of the base of the clamp and the construction of the walls were one scheme or two separates schemes, that in so doing he took account of all the relevant circumstances, and that his conclusion that there were two schemes cannot be described as perverse. Mr Edwards observes that this would lead to the curious conclusion that the clamp or pit as now constructed, in two stages, had resulted in a building, so that any significant extension of that building would fall within the prior notification procedure: see paragraph A(3) in Class 6.
34. In response to ground (2) Mr Lewis submitted that the defendant was entitled to treat the walls of the clamp as a means of enclosure since they had a dual purpose of retention and enclosure. He relied upon the decision of Lord Widgery CJ in Prengate Properties Ltd v Secretary of State for the Environment  25 P&CR 311. I take the facts from the headnote:
"The appellants, with a view to extending the terraced area around a house, built a wall on or close to the boundary of the land and surrounding some half of its total perimeter and began to import soil and to dump it behind the wall. The local planning authority served an enforcement notice on them requiring them to remove the soil and to demolish the wall. At that time, the wall was not playing any part as a retaining wall since the soil had not arrived in sufficient quantity. The appellants appealed against the notice, but the Secretary of State upheld it with amendments. The appellants appealed, challenging that part of the notice which required them to demolish the wall, contending that the wall fell within Class II.1 of Schedule 1, Part 1 of the Town and Country Planning General Development Order 1963, which was not limited to walls which were means of enclosure. The Secretary of State contended that a wall to fall within Class II.1 had to fulfil some function as a means of enclosure, and that the wall in the instant case was not a means of enclosure but a structural wall, in view in particular of the fact that it formed part of a single operation of earth moving, terracing and the building of a retaining wall."
35. Class II.1 permitted "the erection or construction of gates, fences, walls or other means of enclosure", subject to certain height restrictions which are not material for present purposes.
36. The appellants' argument that the words "other means of enclosure" did not govern wall within Class II.1 was rejected. Lord Widgery said this on page 314:
"I think that on the proper construction of this paragraph the building of a wall is not authorised unless the wall has some function of enclosure; in other words, it would not extend to someone who places a free standing wall in the middle of his garden in circumstances in which the wall neither encloses nor plays any part in the enclosure of anything ..."
37. He went on:
"Mr Slynn on behalf of the Secretary of State submits that a wall within the meaning of the paragraph must fulfil some function as a means of enclosure, and for reasons which I have already given I agree with him. He goes on, however, to contend that a wall does not have that characteristic of being a means of enclosure if it is not, if one may so put it, an enclosing wall but a structural wall. In other words, he says that this wall is clearly intended as part of a structure to be completed in the future and that a wall which has that structural function is not to be regarded as a means of enclosure within the paragraph even though as in this case it happens to follow the line of the landowner's boundary. For my part, on this point I am not impressed by Mr Slynn's argument. If the wall in fact operates as a means of enclosure I do not for my part see why it should lose its privilege, as it were, under paragraph 1 merely because it has some function of retaining the soil as well. It does not seem to me that a wall which encloses and a wall which retains are necessarily two different things, and one might have, as [counsel for the appellant] said, certain walls with a kind of hybrid function in enclosing and retaining, so that I would not be disposed to uphold the Minister's contention on that ground."
38. Lord Widgery then went on to deal with what he considered was the "real substance" of the contention put forward on behalf of the Secretary of State. On page 315 he said this:
"I adhere to the principle which I was endeavouring to express in Garland's case; there will very often be cases in which a single piece of engineering development contains within itself something which can fairly be described as a wall, and, since the development as a whole is not permitted, the development in part will not be permitted either. I can see that such instances will often arise, but I cannot bring myself to say that the present is such an instance. I think that one must look at the situation at the date when the enforcement notice was served. There was then visible on the land a wall which, on the face of it, was fully authorised by Class II.1, and I do not think that one is entitled to say that that wall loses its prima facie authority under the town planning legislation merely because in the future it may be the intention of the landowner to incorporate that wall into some larger engineering operation. It had not been so incorporated; I do not think that the intention of the owner so to incorporate it is necessarily conclusive, and I think that the only fair way of looking at this case is to say that, at the relevant time, the wall fell to be treated in isolation, and treated in isolation it was undoubtedly authorised."
Discussion and conclusions
39. Mr Edwards points to the fact that while it is clear from the letter dated 3rd December 2003 that Mr Sperryn did consider the silage clamp as three main components, the letter does not contain any acknowledgment that there was a prior question to be considered: should the proposals be treated holistically as a single scheme, or be divided into separate components, much less does it provide any explanation as to why Mr Sperryn concluded that it was appropriate to treat the proposal in that way rather than as a single project, for the construction of a silage clamp or pit. It is true that the letter does not contain such an explanation and appears to start from the premise that it is appropriate to consider the three main components separately, but it is important to remember that it is not a formal decision letter or determination. Mr Sperryn was merely trying to be helpful in providing the first claimant, who had made representations about a planning application, with a brief explanation of his reasoning as to why he considered that prior notification was not required. In his first witness statement Mr Sperryn explained why it seemed to him that the two elements -- the concrete base and the walls -- were two separate schemes:
"... with the former already constructed, in use, and destined to remain in use whether or not the walls were later added."
40. Mr Sperryn's view that there were two separate schemes would have been considerably reinforced if "the base of the clamp had utilised the floor of the former barn" (see paragraph 5 of his first witness statement and Mr Harle's report). Judging from the photographs the barn had clearly been in existence for a number of years. If its base had been used as the floor of the clamp, the only new construction would have been the two proposed walls, and in such circumstances it would plainly have been appropriate to regard their construction as a separate operation. This was the case which was advanced in the defendant's Detailed Grounds (see above). The defendant now accepts that this gave an incomplete picture: the base of the barn was used, but so too was the area of defective hardstanding to the south of the barn. The whole of this larger area was concreted over in the latter part of September 2001.
41. Mr Sperryn has explained that the claimants' assumption (for which they cannot be criticised since it was shared in the defendant's Detailed Grounds) that paragraph 7 of his first witness statement which referred to his " knowledge that the concrete base already existed" was a reference back to paragraph 5 of his witness statement was wrong. All he intended to convey was the fact that the concrete base existed. We now know that it had been in existence and in use as a base for storing silage for some two years when he came to consider the matter in September 2003. I see no reason to doubt what Mr Sperryn says in his second witness statement, but the misunderstanding created by his first witness statement is particularly unfortunate. In his letter dated 3rd December 2003 Mr Sperryn said that he had sought advice from the defendant's legal section. As mentioned above, the letter dated 3rd December was not a formal decision letter. It was simply an attempt to explain Mr Sperryn's understanding of the position to the claimants. A formal decision, that the proposals did not require express planning permission and did not fall within the notification procedures, would have been sent to Mr Vicary's agents. The notification to them is not in the court bundle, but in a letter to the claimants' solicitors dated 11th December 2003 the defendant's Head of Development Services said this:
"Mr Sperryn is currently on leave until the New Year but before departing he did write to your client Mr Dennis setting out the current circumstances pertaining to the case, the legal issues upon which advice was clarified with the Council's Legal Officers, and the conclusions reached by the Council regarding the need for express planning permission ...
"The letter set out the conclusion that the proposed works, now being advanced by Mr Vicary, were not such to require express planning permission and did not fall within the remit of the prior notification requirements. The relevant legal criteria were explained in the letter and I do not intend to repeat them here ...
"As I have stated above the current situation is that Mr Sperryn has considered the matter afresh, on merit, has sought clarification and legal advice with a conclusion being reached that the works now proposed do not require express planning permission. Both myself and Mr Edwards [the Area Planning Officer] have reviewed this information and concur with the conclusion, which is shortly to be confirmed to the agents involved and the application treated as withdrawn."
42. For understandable reasons the basis on which Mr Sperryn sought legal advice and obtained that advice from the defendant's legal section has not been disclosed. However, it appears probable, given what is said in the defendant's Detailed Grounds, that the defendant's legal section would have advised, and Mr Sperryn's senior officers would have reviewed his conclusions and issued confirmation to Mr Vicary's agents, upon the basis of the same misunderstanding: namely that "the floor of the clamp comprised an existing base, the base of a barn which had been demolished". Such a misunderstanding would have fatally flawed any consideration of the issue: are the proposed walls the completion of a single scheme -- the construction of a silage pit or clamp -- or are they the second of two separate schemes?
43. In his first witness statement Mr Sperryn refers to "the existing concreted area". It is now clear that the base of the pit or clamp was concreted in late September 2001, after demolition of the barn on 17th September, and after the defendant had determined that prior approval would be required for details of what was then described as the "silage pit" that had been proposed in July 2001. Mr Sperryn says that he examined the planning files in detail. The files would have included a report from the claimant's Agricultural Consultant, Mr Kernon, dated 28th February 2003. That report said that Mr Kernon had been informed that the barn had been demolished in early 2001 and the site concreted. His report included a photograph showing what was described as the "newly concreted area, summer 2001". Neither the letter dated 3rd December 2003, nor Mr Sperryn's first witness statement, states whether he knew at the time of writing the letter when the existing concrete base had been laid and, in particular, whether it was a pre-existing base in the summer of 2001 or a base which had been laid shortly after the application in July 2001 and almost immediately after the defendants' determination dated 11th September 2001.
44. In his submissions Mr Edwards placed considerable reliance upon Mr Vicary's intention to extend the silage clamp by the creation of a new silage pit and submitted that it was relevant to take that intention into account in deciding whether the proposals were one scheme or two separate schemes -- for the base and the walls respectively. In this context he relied upon a passage in the speech of Lord Hope in Sage . Having said that he was initially attracted to the Court of Appeal's approach, Lord Hope said this:
"6. I have in the end been persuaded, with respect, that the language of the statute is open to a different interpretation and that it makes better sense of the legislation as a whole to adopt the holistic approach which my noble and learned friend has described. What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not applied for at all. In such a case evidence as to what was intended may have to be gathered from various sources, having regard especially to the building's physical features and its design.
"7. It is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building -- a mock temple or a make-believe fort, for example -- but was always meant to be incomplete, then one must take the building when he has finished with it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run."
45. Mr Lewis urged that a degree of caution should be adopted when applying these passages in Lord Hope's speech since Lord Hope agreed with Lord Hobhouse's reasoning, and in paragraph 14, when dealing with the inspector's consideration of Mr Sage's contention that the building was an agricultural structure for which planning permission was not required, Lord Hobhouse had said:
"The inspector rightly did not investigate the intentions of Mr Sage at various stages in the history nor the uses he had made of the structure from time to time. The character and purpose of a structure falls to be assessed by examining its physical and design features. The relevance of the assessment is to determine whether or not the building operation is one requiring planning permission. The actual use made of the building does not alter the answer to be given. Keeping a pig in the sitting-room or hens in the kitchen does not turn a dwelling house into an agricultural building even if the humans move out. Permission for a change of use may have to be applied for but that would be a separate question. The starting point for considering the permitted use of a new structure is the character of the building for which permission has been given or does not require to be given (section 75(3)): 'the permission shall be construed as including permission to use the building for the purpose for which it is designed'."
46. I accept Mr Lewis' submissions in this respect. Undue emphasis should not be placed on the reference to the developer's intentions in paragraph 6 of Lord Hope's speech. While a holistic approach means that regard must be had to the totality of the operations originally intended to be carried out in deciding whether or not they have been "substantially completed", that does not mean that evidence by the developer of what was in his mind at the time would necessarily be admissible. If planning permission has been applied for, it will be "an easy task" to ascertain what was intended from documents which will be publicly available in the planning register. If planning permission has not been applied for, the exercise will be that much more difficult, but Lord Hope's view that the decision-taker will have " especial regard to the building's physical features and its design" is essentially the same approach as that adopted by Lord Hobhouse in paragraph 14 of his speech.
47. In the present case there is no difficulty in ascertaining what was the totality of the operations that Mr Vicary contemplated and intended to carry out, since he had made an application for a determination in respect of a silage pit in July 2001, followed by two further applications for a slurry pit in June 2002 and March 2003. Since July 2001 the siting and design of the "pit" have remained constant, save that the walls have been reduced in height from 2.6 to 2m and the eastern wall has been reduced in length from 15m to 13m (compare Mr Lloyd-Hughes' letter dated 26th July 2001 and the plans accompanying the planning application). Importantly, the base of the pit constructed shortly after July 2001 has not changed. There is no indication in the letters dated 3rd and 11th December 2003, or in Mr Sperryn's two witness statements, that he, the defendant's legal officers or its Head of Development did have regard to the totality of the operations contemplated by Mr Vicary, as evidenced in his application in July 2001, or to the fact that the base (which would form part of the pit if the walls were added) was concreted shortly thereafter, in deciding whether they were dealing with one scheme or two separate schemes. In paragraph 8 of his first witness statement Mr Sperryn explains:
"Had it been Mr Vicary's intention to construct the silage clamp as a single structure, I would not have thought it appropriate to examine its individual components separately."
48. But that clearly was Mr Vicary's intention, at least when the application was submitted in July 2001. The concrete base was laid some two months later. There is no evidence that Mr Vicary originally intended to construct the silage pit in two separate stages, or that he would have delayed the construction of the walls if there had not been a dispute as to whether or not the prior notification procedure was applicable. Questions of fact and degree are for the defendant to determine, but in so doing it is essential that it has regard to relevant considerations and disregards irrelevant ones.
49. For the reasons set out above, I am satisfied that the decision-making process in this case (a) did not have regard to the totality of Mr Vicary's intended operations, as evidenced in his application dated July 2001, or to the fact that the base of the pit shown in that application was concreted shortly thereafter; and (b) had regard to an irrelevant consideration (irrelevant because it was inaccurate), namely the belief that the floor of the clamp was an existing base, the base of a demolished barn, to which walls were to be added.
50. It follows that ground (1) succeeds and, strictly speaking, it is unnecessary to consider ground (2). However, since the parties have made helpful submissions and the defendant will have to reconsider the matter, I will indicate my view. I accept that the starting point is Prengate , but the defendant's bald submission that "where a wall has the dual purpose of enclosure and retention it remains a means of enclosure" is unduly simplistic. All relevant circumstances must be considered and the decision in each case will be fact sensitive depending very much on the nature and location of the wall in question. In Prengate it is to be noted that the wall followed the line of the landowner's boundary and surrounded about half of its total perimeter. Lord Widgery was not saying that every wall which enclosed and retained would necessarily fall within (what is now) Class A in Part 2 of the Order:
"It does not seem to me that a wall which encloses and a wall which retains are necessarily two different things, and one might have, as [counsel for the appellant] said, certain walls with a kind of hybrid function in enclosing and retaining." [Emphasis added.]
51. Lord Widgery then went on to deal with what he described as the "real substance" of the contention put forward on behalf of the Secretary of State. The real substance was this. The wall had to be looked at as at the date of the enforcement notice (see page 315). At that date it was simply an enclosing wall and was "not playing any part as a retaining wall" (see page 313). The landowner's intention to import soil in the future did not take the wall out of (what is now) Class A in Part 2 of the Order. The circumstances in the present case are quite different. The two walls do not enclose Mr Vicary's land. In so far as they enclose anything they enclose the floor of the silage pit. Accepting that means of enclosure within a larger landholding are permitted by Class A in Part 2 of the Order (eg to sub-divide the holding), the location of a wall within a landholding may well be one of the relevant factors in deciding whether it can sensibly be described as a means of enclosure. In addition, so far as can be ascertained from any application for planning permission or for determination under the Order, its proposed function within the landholding may also be relevant.
52. As at the date of the defendant's decision, at some time after the letter of 11th December 2003 and before the planning application was withdrawn on 5th January 2004, silage was not merely being stored on the concrete base. The silage was being temporarily retained by straw bales: see Mr Lloyd-Hughes' letter dated 23rd May 2003 above and the photographs in the court bundle. Mr Lloyd-Hughes explained that the bales were "less efficient in ensuring a well sealed clamp". It is plain therefore that what Mr Vicary was seeking to construct was not a means of enclosure but, as described in the application for planning permission, an above ground "pit" in which to contain silage. It could be said that the walls of such a "pit" would enclose the material that was deposited within them, but in that respect they would be no different from the walls of an open tank which was to be placed on (or sunk into) the ground. Their function would be precisely the same. Any wall forming part of a building might be said to enclose the space within the building, but it would still be "part of a building", not a " means of enclosure" for the purposes of Article 1(1) of the Order. In the present case it was open to the defendant to conclude that this was the only sense in which the two walls enclosed anything.
53. In deciding whether a wall can reasonably be described as a means of enclosure, rather than as part of a building (as defined by Article 1(1) of the Order), it must also be relevant to consider the nature of the proposed construction. In the present case the walls would be built of sleepers laid horizontally between 2-metre high steel channel uprights. The southern wall of the existing clamp, constructed in a similar manner and retaining a substantial amount of silage at the beginning of October 2001, can be seen in the photographs. Applying a measure of common sense, such a substantial mode of construction is not required for the purpose of enclosure -- for example, to prevent the cows in the collecting yard from reaching the silage -- it is required because it has to retain a heavy weight of silage within the "pit".
54. In these circumstances it was at least open to the defendant to conclude that as a matter of fact and degree the proposed walls, even if viewed in isolation, were part of a building, "a structure or erection", to hold silage, and that any enclosing function was purely incidental to that primary function, or so slight that, as a matter of fact and degree, the construction of the walls fell more naturally within Class A2(2) in Part 6 of the Order, rather than Class A in Part 2. These factual issues have not been properly considered by the defendant. It would appear that the defendant proceeded upon the basis that so long as the walls could be said to perform some enclosing function, then they automatically fell within Class A in Part 2. For the reasons given above, I do not accept that Prengate is authority for such a mechanistic approach. Some walls may have a hybrid function; whether these particular walls would have such a function was very much a matter of fact and degree which should have been, but was not, addressed by the defendant, having regard to their particular characteristics as described above.
55. For these reasons, the challenge also succeeds on ground (2), and it follows that the application must be allowed and the Council's decision quashed.
56. Yes, thank you.
57. MR PIKE: My Lord, I am most grateful. Mr Edwards was not able to be here today, your Lordship, and I apologise on his behalf for that.
58. MR JUSTICE SULLIVAN: Of course, yes. I said that substitutes would be quite acceptable.
59. MR PIKE: In these circumstances I do ask for the claimants' costs in this matter. A sum has been agreed with the defendant, a sum of £15,000 plus VAT, your Lordship, and I do not think that is a matter between the parties.
60. MR JUSTICE SULLIVAN: Is that agreed, Mr Lewis? Is there any disagreement about principle or the detail?
61. MR LEWIS: No, the respective solicitors got together over the last few days and I think that is an agreed figure.
62. MR JUSTICE SULLIVAN: Very sensible. So the application is allowed; the decision is quashed; the defendant is to pay the claimants' costs, those costs to be summarily in the agreed sum of £15,000 plus VAT.
63. MR LEWIS: I would ask for permission to appeal.
64. MR JUSTICE SULLIVAN: Yes.
65. MR LEWIS: Obviously I cannot by way of instant response give the level of detail that no doubt I will be able to in due time, but, my Lord, there are three matters which in my submission do require further consideration.
66. Your Lordship's judgment was, to a significant extent, dependant upon the question of Mr Vicary's original intention. Your Lordship indicated, for example, that there was no indication that his intention ever changed. Your Lordship said that his intention was clear because of the application that was made for prior notification, and therefore this was a factor which was clearly of some significance in your judgment.
67. My Lord, on that particular point I would simply say that first of all the intention really is not clear. Your Lordship will recall that we do not have a copy of the original application that was made by Mr Vicary personally. The first application we had was the second application for prior notification.
68. MR JUSTICE SULLIVAN: Yes. We have to glean what was in that from Mr Lloyd-Hughes' letter, I think.
69. MR LEWIS: That is right, my Lord. I agree that it is likely that Mr Vicary's intention did not change. There is no evidence that it did, and therefore what he intended to do was what he actually did, ie to surface, or resurface, the whole of the area that was previously surfaced and to take down a barn, to use the base of that barn and the area immediately outside that was surfaced, and to resurface that, and to use part of that for the base of the clamp. But, as is now clear, that certainly was not the whole purpose of the resurfacing. The clamp does not take up the whole of that resurfaced area.
70. My Lord, in my submission what in fact was the far more likely position is that Mr Vicary, acting by himself, simply did not appreciate that he did not need prior notification for what was always a self-standing aspect, what was put forward as a composite scheme: his intention to resurface a large area of his farm and to place on part of it sleeper walls to form a clamp. To categorise, as your Lordship has done, as it were, that as a clear intention to provide a building, my Lord, in my submission that simply is not likely to have been the reality. He would not have understood that he was resurfacing one area and using part of it, as he was entitled to do in my submission, to put an enclosure on it. My Lord, on that point and the importance that Mr Vicary's intentions played in your Lordship's judgment, I would ask for permission.
71. My Lord, the second aspect, which again has played a part in your Lordship's judgment, is this misunderstanding, to use your Lordship's word, that the clamp occupied the base of the former barn. My Lord, I have two points to make on that. First of all, I do query whether there was a misunderstanding. I entirely accept and obviously acknowledge that the phraseology that was used by the Council's officer was unfortunate, but it is patently clear when one sees the photographs that the area of the clamp extends well beyond the area of the barn. We saw in the photographs, the one where the digger -- your Lordship will recall there was a digger carrying out some work on the area immediately outside the barn.
72. MR JUSTICE SULLIVAN: It is plain if you know where the barn was.
73. MR LEWIS: My Lord, the barn was still standing. On that photograph --
74. MR JUSTICE SULLIVAN: Sorry, what I meant was if you knew where the barn was when you were looking at the site in September 2003, the barn having been demolished two years before. Certainly in October 2001 there is a large area of white, obviously new, concrete, but we remember that in September 2003 quite of lot of that at least was covered by rather less white-looking silage.
75. MR LEWIS: Yes, it is certainly right to say that the barn had gone by the time that the officer visited the site, but he also says that he was familiar with the photographs. They were there in fact --
76. MR JUSTICE SULLIVAN: He produces them.
77. MR LEWIS: Yes, they were produced, and one of the photographs that he knew was the one which showed the barn still in place with the work going on. He visited the site. He viewed it from a number of positions. My Lord, I do query, as a matter of common sense, whether it can be said that it was anything other than a slightly loose use of language. It was factually correct that the base of the clamp used the base of the former barn but, as your Lordship has said, that is not the whole story. But to suggest that Mr Sperryn as it were simply did not know when he saw the photographs and visited the site and saw the size -- to suggest that he simply did not know and he misunderstood what was the position was, I would suggest that that is a fairly large assumption.
78. My Lord, my second point on this aspect is I think perhaps a more telling one. It makes no difference, as I submitted to you last Tuesday, whether or not it was a base of a former barn. What was significant was the fact that there was a pre-existing base. The fact there might have been a structure, a roof over part of it, is not really either here nor there. The point of importance in whether or not this was one operation or two, or one of the factors that was taken into account was that a former base was being used.
79. Now, Mr Sperryn certainly knew that it is not simply reused, that some work was carried out to it, because he says in his witness statement -- the words were --
80. MR JUSTICE SULLIVAN: "Even if some work had been carried out to it ..."
81. MR LEWIS: I am very grateful. But whether or not it was part of the barn or not is frankly irrelevant. What mattered, and what was present in his mind as a factor -- certainly not a determinative factor by itself but as one of the aspects of standing back and taking a view -- one of the factors he took into account was the fact that we are not actually talking about a new base here. It was a reuse of a former pre-existing base. So, my Lord, on that basis too I would suggest that the matter should be revisited.
82. The third matter you will not be surprised to hear from me was your Lordship's view with regard to enclosure. Your Lordship has accepted it is a matter of fact and degree for the local authority. Mr Sperryn says that he came to the view that it was a means of enclosure. Your Lordship's as it were detailed criticism, saying that there were certain aspects such as the fact that it also retained may have meant, if that had been reconsidered, that it would not have been a means of enclosure, and on that I would again suggest that it was absolutely clear what was being done. It was a simple scheme. For Mr Sperryn to look at that and say it was a means of enclosure could only really be faulted if in fact the law said that if something was primarily designed for retention it could not be a means of enclosure. Of course, the law is quite the opposite of that. We know that does not stop something being a means of enclosure. Whilst I accepted on Tuesday that there may be extreme cases such as the case of the retaining walls in the Wycombe case where the means of enclosure was purely accidental, it just so happened that one ended up with something that might look like a means of enclosure but clearly the intention would be purely to retain back soil from slumping onto a new car parking area.
83. This case is a million miles removed from that, in my submission, and to criticise that fact-finding exercise, which is largely a matter of common sense and looking at the plans, in my submission that is not a fault that really should be laid at the Council's door.
84. So my Lord, for those three immediate reasons that occur to me, I would suggest that this is a matter that should be considered in the Court of Appeal and I would ask for permission.
85. MR JUSTICE SULLIVAN: Thank you, Mr Lewis. Mr Pike, I need not trouble you. That was a jolly good try on Mr Lewis' part to convert what are essentially questions of fact into interesting points of law for the Court of Appeal, but I do not think so. Mr Lewis, you will have an opportunity obviously of persuading the Court of Appeal that there is some point of law there that still survives the factual problems. So I refuse permission to appeal. Yes. Anything else?
86. MR PIKE: No, my Lord. I am grateful.