Summary

An appellant needed to state a fall-back position in the event that his appeal failed in whole or in part. It was not reasonable to come to the Court of Appeal and ask for a case be remitted to enable the planning inspector to invite further submissions. An argument that the inspector had erred in law could not be mounted in circumstances were the appellant had been professionally advised and had failed to make relevant submissions.

Facts

Appeals by the secretary of state against the decision of Jackson J. These appeals arose out of two enforcement notices served upon Mr Taylor ('T') in connection with a large amount of waste and rubble that he had imported onto his land. With this material T had constructed an area of hardstanding, an area of deposited waste and a track for farm vehicles. Two enforcement notices were served, (1) asserting a material change of use from agricultural to agricultural and use for unauthorised importation and deposit of waste materials, and (2) alleging the carrying out of engineering or other operations including the laying of a hard surface 50 by 30 metres, and the laying of a track. T appealed against each notice by way of written representations to the secretary of state and then to the High Court. Jackson J allowed the appeals and remitted the matter to the secretary of state who appealed to this court. The decision of the inspector was that there had been a material change of use, that this was not permitted under Schedule 2 Part 6A Town and Country Planning (General Permitted Development) Order 1995 SI 1995/419 ('GDO') in that it was not reasonably for the purposes of agriculture, that the development exceeded the 465 square metres permitted development under the GDO, that there was no evidence to support any claim for a pre-existing private way and that the steps to be taken to remedy the breach did not satisfy what was necessary to remedy the breach of planning control. In relation to the material change of use notice T relied upon grounds (b), (c), (f) and (g) contained within s.174 (2) Town and Country Planning Act 1990, in relation to the operations notice he relied upon grounds (a), (c), (f) and (g). T did not rely upon ground (d) nor did he suggest that what had taken place did not amount to engineering or other operations. T further submitted that he had permission that had been granted by the GDO, further that the inspector should have declared how much hardstanding was reasonably necessary for the purposes of agriculture and varied the notice to specify the relevant area and require only removal of the excess (it was accepted that there had been no material before the inspector that she could have used to exercise an independent choice on which area to remove). It was submitted by the secretary of state that if a developer breached the limitations in the GDO then he had carried out development without planning permission, and that T had never specified as a fall back position which 465 metres he wished to retain if his appeal failed.

Held

(1) The inspector did not err in concluding that the totality of what had been done exceeded what was reasonably necessary for the purposes of agriculture. It was clear that there had been a breach of development controls. (2) The inspector was entitled on the exiguous material to conclude that T had not shown that what had been done had been had been done within the boundaries of a private way. (3) The inspector was entitled to conclude that T was not entitled to bring so much material onto the site but that he was by virtue of Schedule 2 Part 6A to bring some of the material onto the site. However the proper course for an appellant who relied upon ground (f) was to specify, without prejudice to his main position, his fall-back position and indicate to which variations of the notice he would submit. It was not reasonable to come to this court and ask for the case to be remitted so that the inspector could ask for further submissions. T had been professionally advised and the advisors had not made any submissions on ground (f). In such circumstances any failure by the inspector in her decision letter to advert to the possibility of asking for further submissions did not amount to an error of law. (4) A site visit for the purpose of producing new submissions was not appropriate. The function of a site visit was to enable the inspector to make a judgment about submissions, which had been made, rather than to explore new possibilities. (5) It was not necessary to examine the extent to which a developer in breach of the GDO has carried out development without planning permission. (6) S.177 of the 1990 Act provided that upon the determination of an appeal there were a number of options open to the decision maker apart from allowing or dismissing the appeal in its entirety, however it was not contended that the inspector had erred in not making use of those powers, and this court did not suggest that she had been in such error, she had not been asked to exercise the relevant power.

Appeals allowed, the enforcement notices were to stand.