Appeal Decisions - Planning JungleAppeal Decisions Inquiry Held on 5 September 2017 Site visit made...

https://www.gov.uk/planning-inspectorate

Appeal Decisions Inquiry Held on 5 September 2017

Site visit made on 5 September 2017

by P N Jarratt BA DipTP MRTPI

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 26 September 2017

Appeals A and B Refs: APP/U1105/C/17/3173603 and 3173604 Land south of Bennettshayes Farm known as Meadow View, Awliscombe, Honiton, EX14 3PY

The appeals are made under section 174 of the Town and Country Planning Act 1990 as

amended by the Planning and Compensation Act 1991.

The appeals are made by Mr Andre Prinsloo and Mr D Dymond against an enforcement

notice issued by East Devon District Council.

The enforcement notice was issued on 7 April 2017.

The breach of planning control as alleged in the notice is the carrying out of a material

change of use of the land to use as a single dwelling house.

The requirements of the notice are:

I Permanently cease the residential use of the agricultural building and mobile home;

II Permanently remove the mobile home from the land;

III Permanently remove the extension to the mobile home from the land;

IV Permanently remove the shed from the land;

V Permanently remove the hot water heating system, all pipework and cold water tank

installed within the agricultural building on the land

VI Permanently remove the chest freezer installed within the agricultural building from

the land;

VII Permanently remove the wood burning stove and all structures associated with its

use including the flue installed within the agricultural building from the land;

IX Permanently cap and remove the septic tank and associate pipe work from within the

agricultural building;

X Permanently remove the solar panels and associated structures installed on the roof

of the agricultural building from the land;

XI Permanently remove all satellite dishes and associated structures installed on the

exterior of the agricultural building from the land;

XII Permanently remove all domestic paraphernalia from within the agricultural building

such as the rotary washing line, the piano, the football games table, motor bikes and

exercise bike;

XIII Permanently remove from the land the tree house including slide and the

trampoline;

XIV Permanently remove from the land all materials and debris associated with

compliance of steps II to XII inclusively.

The period for compliance with the requirements is 6 months.

The appeals are proceeding on the grounds set out in section 174(2) (d) and (g) of the

Town and Country Planning Act 1990 as amended.

Summary of Decisions: Notice quashed after correction and appeals allowed

Appeal C Ref: APP/U1105/C/17/3173610

Land south of Bennettshayes Farm known as Meadow View, Awliscombe, Honiton, EX14 3PY

The appeal is made under section 195 of the Town and Country Planning Act 1990 as


Appeal Decisions APP/U1105/C/17/3173603 and 3173604 , APP/U1105/C/17/3173610

https://www.gov.uk/planning-inspectorate 2

amended by the Planning and Compensation Act 1991 against a refusal to grant a

certificate of lawful use or development (LDC).

The appeal is made by Mr Andre Prinsloo against the decision of East Devon District

Council.

The application Ref 16/1536/CPE, dated 29 June 2016, was refused by notice dated 29

March 2017.

The application was made under section 191(1)(a) of the Town and Country Planning

Act 1990 as amended.

The use for which a certificate of lawful use or development is sought is use of the

agricultural barn as a single dwelling house.

Summary of Decision: Appeal allowed

Procedural Matters

1. All evidence was given on oath.

The site and relevant planning history

2. The appeal site is in an Area of Outstanding Natural Beauty south of

Bennettshayes Farm and is shown on the plan attached to the enforcement notice to be about 0.62 hectares consisting of a barn, known as Meadow View,

within an area bounded by fencing/hedging and set in a wider area of pasture land that is used as a paddock.

3. Within the barn is a mobile home fitted out for residential purposes and connected to an electrical supply, water supply and drainage to a septic tank. Also within the barn is a garden shed, water tank, a wood burning stove, a

washing line, a washing machine and drier, a variety of domestic items, motor cycles and animal cages. Outside or attached to the barn is a chimney/flue, a

CCTV camera, a pigeon loft, a satellite dish, a stable and children’s play equipment comprising a tree house, slide, swings and trampoline. There is also a recently constructed decked area with a leisure pool and a new section of

timber fence by the stable. The access drive and garden area are cultivated.

4. In March 2011, a prior approval application for the erection of an agricultural

building was granted (11/0632/AGR). The application was described as being required for the secure storage of a tractor, farm equipment and hay bales, etc.

The LDC application

5. In opening the Council stated that the LDC application was refused on the basis

that in the absence of supporting evidence that the barn had been in agricultural use prior to the bringing on site of the mobile home, no change of use had occurred and that s171B(3) should apply and the relevant time limit

for enforcement action was 10 years. The Council now accepts that this was an error and that the barn as approved was used for agricultural purposes. This

was the basis upon which the enforcement notice was issued, the mobile home being considered as a temporary structure within the barn. Reference to the use of land within the building rather than the building itself was as a result of

the perceived breach at that time.

Enforcement Notice

6. Notwithstanding the Council’s reference to the 10 year limitation, the allegation does however refer to the breach of control having occurred in the last four




years. The Council accepts that this is an error and should be corrected based

on the facts of the case.

7. The allegation refers to the material change of use of the land to use as a

single dwelling house. In view of the admission by the Council that the notice attacked to use of the land within the agricultural building, the allegation should be corrected to refer to the building rather to the land. A more accurate

description of the allegation is “the carrying out of a material change of use of the agricultural building to use as a single dwelling house.”

8. The appellant accepts that no injustice would occur if I use my power under s176 to correct the notice, which is what I intend to do by deleting reference to four years and correcting the allegation.

Statement of Common Ground

9. A SoCG was submitted at the inquiry (Document 1). Although the parties

agreed to various matters, including No.8 relating to communication between the appellants and the Council (other than the prior notification application), this contradicts the statement in the officer’s delegated report for the LDC

relating to an enquiry in 2011 regarding advice on the creation of new dwellings in the countryside on land in the ownership of a family member. The

parties accepted that No.8 was written in error.

The LDC appeal and the appeals on ground (d)

10. The appellant contends that the use of the agricultural building is that of a

dwellinghouse, to which the four year rule applies. The mobile home positioned within the building and the amount of domestic paraphernalia within the

confines of the barn is extensive and the mobile home itself forms only part of the facilities. In Gravesham BC v SSE [1983] JPL 307 it was held that the distinctive characteristic of a dwelling house was its ability to afford those who

use it the facilities required for day-to-day private domestic existence. The barn performs such a purpose. In Lee v FSS & Swale BC [2003] EWHC 2139

(Admin) it was held that the use of caravans positioned within a building must be part of the use of the building, and will be material to, if not determinative of, the question whether the use is, or is not, use as a single dwellinghouse;

and if the caravans use is residential and such use is in conjunction with the use of the building, it must be part of the use of the building. On this basis and

having had regard to the appeal decisions referred to by the appellant1, I am satisfied that the barn that has been used as a dwellinghouse. As referred to earlier, this is the position with which the Council now agrees.

11. The residential occupation of the barn started in January 2012 and as the notice was issued in April 2017, this period exceed the time limit set out in

s171B (2) which states that in the case of a change of use of any building to use as a single dwellinghouse no enforcement action may be taken after the

end of four years beginning with the date of the breach. The Council agrees that the residential occupation of the barn started in January 2012 and this is supported by the evidence submitted with the LDC application and in evidence

at the inquiry. It is therefore not necessary or me to consider this further.

1 APP/X1118/C/07/2052730 and APP/P1615/X/07/2046883 (Documents 7 and 8)




12. The Council’s Enforcement Officer, Jacqueline Webster, visited the site on 17

February 2016 and on 8 July 2016 following a complaint in February 2016 that a mobile home was being concealed in the barn. She observed that the mobile

home contained a living room, galley kitchen, bathroom and three bedrooms, one of which was a side extension to the mobile home. Within the barn were domestic items, washing and drying machines, a garden shed containing a

water heater and water tank, a wood burning stove (the flue of which exited through the roof of the barn, animal cages, rotary washing line, dustbins,

games tables and piano. Waste water was piped to a septic tank set into the ground outside the barn and the barn itself was connected to electricity and water supplies. Motor bikes were also stored in the barn. Ms Webster also

observed a lean-to structure on the north side of the barn upon which were solar panels and a satellite dish on the west elevation about 1 metre above

ground level. Ms Webster concluded that there were no physical alterations to the barn originally approved under 11/0632/AGR and that there was no overt sign of domestic occupation when the barn was viewed externally2. It was also

concluded that as the mobile home had little permanence for it to be considered as a building, then the 10 year rule applied although at the inquiry

she accepted this not now to be the case.

13. In Welwyn Hatfield BC v SSCLG (2011), the Supreme Court held that the time limits in s171B should not apply in cases of positive deception designed to

avoid enforcement action within those time limits. It was also held in Bonsall v SSCLG and Jackson v SSCLG [2015] EWCA Civ 1246 that Parliament did not

intend to remove the effect of the decision of the Supreme Court in Welwyn Hatfield in relation to deliberate concealment, but intended the Planning Enforcement Order procedure as an alternative, and additional, means of

permitting enforcement action outside the normal time limits in cases of deliberate concealment, thereby being consistent with the legislative objective

of strengthening local planning authorities’ enforcement powers. As a result of Jackson the Council decided to rely on the Welwyn Hatfield case to support its refusal of the LDC.

14. The Council contends that as a result of deliberate concealment of the mobile home and internal works, the period to take enforcement action has not

expired and the appellant should on public policy grounds not benefit from the concealment.

15. The Council considers that there are similarities with the Welwyn Hatfield case -

permission was originally granted for agricultural use, although it is accepted that the barn was used for agricultural purposes before the change of use; the

residential use of the barn was concealed from public view; and, it was not registered for a postal address or Council Tax.

16. The principles on deception and public policy derived from Welwyn Hatfield are: that positive deception is a matter integral to the planning process; that deception was directly intended to undermine the planning process; it did

undermine that process: and, the wrong-doer would profit from the deception if the normal limitation period were to enable him to resist enforcement.

17. Welwyn Hatfield involved a Mr Beesley applying for planning permission for a barn but never using it as such as it had been fitted out as a dwelling and used

2 The evidence shows that this is not the case – there are a number of roof lights on both roof pitches of the barn

and windows in two elevations, none of which were shown on the approved plans.




for that purpose. That has not occurred in this appeal as the approved barn

was erected and used for agricultural purposes prior to its use as a dwelling. However concealment can amount to deception as described in Jackson in

discussing the case of Fidler v SS [2011] EWCA Civ 1159 in which a Mr Fidler concealed a house behind straw bales but had not engaged in the planning process beforehand.

18. The intention of the appellant was originally to position the mobile home on land owned by David and Lyn Dymond, Mr Prinsloo’s in-laws adjacent to but

outside the barn. Due to damage to the mobile home in transit it was positioned in the barn on 13 January 2012 which required some adjustment to the fabric of the building. Anne Colle, a local resident of a nearby cottage,

gave evidence at the inquiry that she was told in advance by Claire Dymond of the intention to live in a caravan to the north of her cottage. Mr Ricketts,

another local resident who gave evidence, regularly walks past the appeal property and confirmed that he considered ‘deliberate concealment’ to be at odds with his knowledge of the family use of the site. Other local residents

have submitted representations about their knowledge of the mobile home.

19. The barn is prominently situated on rising land and the children’s play

equipment and the flue, which extends well above the pitched roof, are visible from the lane. However such views into the site would be more restricted when the hedges were in seasonal growth and prior to their trimming. The site

entrance from the lane has a model of a Minions3 character showing the property name, a post-box and a name sign in proximity, and there is some

landscaping and a hedge being cultivated along the boundary with the paddock to the south. Not all of these features have existed since the change of use commenced, but some have nevertheless appeared within a 4 year time frame

when the Council could have pursued enforcement action. Coupled with this are the movements to and from the site including the children’s school

journeys. These factors provide an indication that the appeal site and building were in use for purposes other than for agriculture.

20. The roof lights on the barn would allow the escape of artificial light at night

which could indicate the presence of non-agricultural use but as Mr Dymond said in evidence, it is not unusual to have lights in barns where livestock are

housed. The visibility or otherwise of lights is not a determining factor.

21. At some time after occupation windows were introduced on the north and east elevations of the barn but these would not have been visible from the lane to

the west. In all other respects the physical appearance of the barn remained largely the same and only the use changed.

22. No evidence has been given by the Council to suggest that the appellants have made any misleading statements which have successfully prevented discovery

of the breach. The appellant’s failure to register for Council Tax is not an act of deception nor is it integral to the planning process, although it could be regarded as ancillary to a plan of deception. Nor does the failure to notify the

planning authority that a change of use had occurred represent an act of deception. In my view these acts of omission indicate that the appellant was

seeking to maintain a low profile to avoid detection.

3 A cartoon character




23. Avoiding detection would also enable the appellant to profit from his actions in

the absence of enforcement action. There is no evidence to indicate that this was the intention and I accept that the appellant’s circumstances relating to

the provision of accommodation for his family and the absence of affordable housing in the locality were the significant factors that led to the breach.

24. The use of the building and the positioning of certain domestic items do not

necessarily lead to a conclusion of deliberate concealment although in my view it would be difficult for a local planning authority to be aware of the breach from

casual observation due to the relatively remote location of the site, the narrowness of the lane and the size of the hedges. Knowledge of potential or actual breaches in a rural area often would only come to their attention through

the diligence of a Parish Council or local residents. In this case the use of the barn appears to have been known to local people and the owner of the

transport yard adjacent to the appeal site (who is also a parish councillor) for some years without a complaint being made.

25. I do not condone the actions of the appellant in failing to apply for planning

permission for either the stationing of a mobile home for residential use on the originally intended location outside the barn, or to seek permission for the use

of the barn as a dwellinghouse. I believe that there would have been sufficient understanding by Mr Prinsloo or his father-in-law of the need for planning permission. Indeed, Mr Dymond had obtained planning approval for the barn.

The planning system is only effective where abuse of the system does not lead to an advantage.

26. On the basis of the facts of this case there has been concealment of the mobile home inside a barn. However this case relates to concealment of a change of use of a building which is difficult to detect where there has been no significant

alteration to a building that has been designed and built for agricultural purposes. I therefore have some sympathy with the Council’s position in

seeking to enforce against such breaches, particularly where the local community has remained silent for four years.

27. However whilst I conclude that there has been concealment of the change of

use, I consider on the balance of probabilities that this has not represented positive deception in the planning process as set out in the Welwyn Hatfield

case. S171 (B) (2) sets out the time limits for taking enforcement action against a change of use of any building to use as a single dwellinghouse and the appellant should not be disentitled to this provision of planning law.

Conclusions

28. For the reasons given above I conclude that the enforcement notice appeals

should succeed on ground (d) following correction of the allegation and the incorrect reference to a four year time period. Accordingly the enforcement

notice will be quashed. In these circumstances the appeal on ground (g) set out in section 174(2) to the 1990 Act as amended does not need to be considered.

29. For the reasons given above I also conclude, on the evidence now available, that the Council’s refusal to grant a certificate of lawful use or development in

respect of use of the agricultural barn as a single dwelling house was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act as amended.




Decisions

Appeals A and B Refs: APP/U1105/C/17/3173603 and 3173604

30. It is directed that the enforcement notice be corrected:

i) By the deletion of the words “the carrying out of a material change of use of the land to use as a single dwelling house” and their replacement with the words “the carrying out of a material change of use of the

agricultural building to use as a single dwelling house .”

ii) by the deletion of the words "It appears to the Local Planning Authority

that the breach of planning control has occurred within the last four years” in paragraph 3.

Subject to these corrections the appeal is allowed and the enforcement notice

is quashed.

Appeal C Ref: APP/U1105/C/17/3173610

31. The appeal is allowed and attached to this decision is a certificate of lawful use or development describing the existing use which is considered to be lawful.

P N Jarratt

Inspector




APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY: Mrs Shirley Shaw LLB Dip LG

She called Ms Jacqueline Webster

Darren Roberts BSc (Hons) MRTPI

Enforcement Officer

Principal Planner Central Team

FOR THE APPELLANT: Graham Gover LARTPI, Solicitor

He called

Anna Colles Andre Prinsloo

David Dymond

Local resident Appellant

Appellant

INTERESTED PERSONS:

Simon Ricketts Local resident

DOCUMENTS

1 Signed statement of common ground 2

3 4 5

6 7

8 9 10

11 12

Opening by Mrs S Shaw on behalf of the Council

Statement by Anna Caroline Coles (Appellant) Plan of appeal site (Council) R v FSSS 2003 WL 23721481 (Appellant)

Extract from JPL 2004 Apr, 466-470 (Appellant) APP/X1118/C/07/2052730 (Appellant)

APP/P1615/X/07/2046883 (Appellant) LPA Closing Appellant Closing

Appellant’s application for costs LPA response to costs application.



Lawful Development Certificate TOWN AND COUNTRY PLANNING ACT 1990: SECTION 191 (as amended by Section 10 of the Planning and Compensation Act 1991)

TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) (ENGLAND) ORDER 2015: ARTICLE 39

IT IS HEREBY CERTIFIED that on 7 April 2017 the use described in the First

Schedule hereto in respect of the land specified in the Second Schedule hereto and cross-hatched in black on the plan attached to this certificate, was lawful within the

meaning of section 191(2) of the Town and Country Planning Act 1990 (as amended), for the following reason:

The material change of use of the former agricultural building to a single dwelling house is immune from enforcement action by virtue of s171(B).

Signed

P N Jarratt Inspector

Date 26 September 2017

Reference: APP/U1105/C/17/3173610

First Schedule Use of the agricultural building as a single dwelling house.

Second Schedule

Land south of Bennettshayes Farm known as Meadow View, Awliscombe, Honiton, EX14 3PY




NOTES

This certificate is issued solely for the purpose of Section 191 of the Town and Country Planning Act 1990 (as amended).

It certifies that the use /operations described in the First Schedule taking place on the land specified in the Second Schedule was /were lawful, on the certified date

and, thus, was /were not liable to enforcement action, under section 172 of the 1990 Act, on that date.

This certificate applies only to the extent of the use /operations described in the

First Schedule and to the land specified in the Second Schedule and identified on the attached plan. Any use /operation which is materially different from that

described, or which relates to any other land, may result in a breach of planning control which is liable to enforcement action by the local planning authority.


www.gov.uk/planning-inspectorate

Plan This is the plan referred to in the Lawful Development Certificate dated: 26 September

2017.

by P N Jarratt BA DipTP MRTPI

Land south of Bennettshayes Farm known as Meadow View, Awliscombe,

Honiton, EX14 3PY

Reference: APP/U1105/C/17/3173610

Scale: Do not scale

P N Jarratt

Inspector


www.gov.uk/planning-inspectorate


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