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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lovejoy, R (on the application of) v Caradon District Council [1999] EWHC Admin 355 (26th April, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/355.html Cite as: [1999] EWHC Admin 355 |
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1. MR
JUSTICE JOWITT: The Applicant, Mr Lovejoy, occupies land at Calstock in
Cornwall. He wishes to develop an agricultural business on that land by
expanding a woodland habitat to encourage biodiversity of organic agriculture
so to produce timber for use at trade.
2. He
wishes to manage a site of special scientific interest. He wishes to produce
quality reeds for thatching. Next, he wishes to create a stand of willow trees
for coppicing. Finally, he wishes to plant fruit bearing trees in an orchard.
3.
It was in pursuit of those ambitions that he made an application under the
Town and Country Planning (General Permitted Development) Order 1995. He now
seeks judicial review of the decision of the planning authority that his
application for a determination, whether or not approval was required for what
he proposed to do, was not properly made and therefore was not an application.
4. Leave
to move for judicial review was refused on the papers and was given after an
oral hearing by
5.
It is necessary to begin a consideration of this application by reference to
the statutory provisions. Section 55(1) of the Town and Country Planning Act
1990 defines development as:
7. However,
section 58 goes on to provide that planning permission may be granted by a
Development Order and this is where we come to the Town and Country Planning
(General Permitted Development) Order 1995. In
8. Part
6 of Schedule 2 to the Order, which relates to agricultural buildings and
operations, Class A defines the activity to which Part 6 refers:
10. It
is apparent that when an application is made under these provisions of the
Order the planning authority has, first, to consider whether it has an
application which complies with the procedural requirements. If there is no
compliance, then there is no application under the order. That much Mr
Willars, for the applicant, concedes. If the planning authority concludes
there is an application under the order, then it has to go to Article A1 and
consider whether the development is excluded. If it is not, it then has to
look at Article A2 and ask whether the application complies with the
requirements set out therein.
11.
The first issue in this case is to construe the phrase in Article
A2(2)(d)(ii), "a written description of the materials to be used". There are
two meanings of that phrase in contention. One is that the materials which
will
be used if the development if carried out have to be stated. The alternative
construction, for which Mr Willars argues, is that it is sufficient to state
the materials which may be used, or one or more of which may be used, if the
development is carried out. The matter is one of impression but, in deciding
upon the proper construction, two factors should be borne in mind. First, this
is a convenient and, in many cases, quick procedure to see if development can
be carried out because, if there is an application which satisfies the relevant
conditions and the planning authority are satisfied that the development is
permitted by the order and do not wish to exercise the right to approve the
siting, design or external appearance of the building, then the development can
go ahead under Article A2(2)(d) which provides:
12. It
is obviously of assistance to the planning authority in deciding whether or not
approval is required, that there should be a degree of specificity about the
application. That is, I think, also made clear by (v) which provides:
13. It
seems to me there is no sufficient degree of specificity if all that is
required of the applicant
14.
The application which was made under the order and which gives rise to this
application before me was made by the applicant on 1st July 1997 and received
by the respondent on 1st August. He said -- and he was referring to documents
accompanying an earlier application --:
15. To
that letter he received a response from the planning authority (the respondent
in this case) dated
17. Mr
Willars submits that, if the walls are to be coloured, it hardly matters of
what materials they are constructed. But, since the order requires information
about the materials to be used to be given in order for there to be a valid
application, as he concedes, one cannot avoid the bite of the requirement
simply by saying the materials do not matter if the walls are to be coloured.
It seems apparent, reading these two letters together, that the proposals now
are that there will be a variety of materials from which Mr Lovejoy will make
his choice and make it as the development proceeds perhaps. The materials are
wattle and daub, render, stone, wood and last in the list is cob, though the
reference to "who knows", taken in the context of the assertion in the
preceding paragraph in the first letter, suggests that this is only a tentative
view materials being chosen on a dynamic basis being decided later and the
phrase "who knows" is readily able to be understood as suggesting there may be
even other materials from which, as developer, Mr Lovejoy, would choose. I
have no hesitation in coming to the conclusion that that range of choice which
Mr Lovejoy reserved to himself meant that he had not complied with Article
A2(2)(d)(ii).
18.
Mr Willars submits, in the light of a later letter, the uncertainty about
the materials to be used is clarified. I refer first though to a further
letter which Mr Lovejoy received from the planning authority of 13th August
which said:
20. The
letter pointed out that the 28 day determination period under the order would
not commence until a complete and valid application had been received by the
planning authority. Mr Willars submits that the planning authority was not
entitled to require to be told exactly the materials to be used. But that
reference to "exactly" has to be looked at in the context of the earlier
correspondence. Mr Lovejoy was obviously being anything but specific and
seeking to retain a fairly wide-ranging power to decide, as he went along, what
materials should be used. The response to that letter is the one on which Mr
Willars relies. It is dated 23rd August. In paragraph 1.1 he writes:
21. Mr
Willars submits that mud and wood is another way of referring to wattle and
daub. It is perfectly true that those are the materials from which wattle and
daub is made, that is, by a particular kind of construction. It is not clear
that mud and wood are used in such a way as necessary to restrict their use to
the method of construction known as wattle and daub. What Mr Willars says
about this letter is that here the applicant is now tying himself down to the
types of materials to be used. They will be stone, mud and wood, so far as the
walls are concerned. Indeed, Mr Willars says stone, it has already been made
clear, is for the base so that mud and wood are the materials now to be used
for the walls.
22.
The planning authority did not read the letter in that way. In deciding how
to understand the letter, it was relevant for them to look at the earlier
correspondence since Mr Lovejoy was plainly intending to refer to what he had
said already when we said at paragraph 6. 1:
23. Then
he went on with details of the materials to be used. Moreover, as Mr Forsdick,
for the Respondent points out, if more than one material is to be used in the
construction of the walls, unless it is apparent that the materials are to be
an amalgam, it is necessary to say that certain parts of the walls will be
constructed from one material and other parts from another material. That was
not done in this case.
24. However,
that, in my view, is a minor point compared with the principal point that, when
one looks at this correspondence as a whole, Mr Lovejoy was not tying himself
down to saying these were materials which he would use. He was still wishing to
keep open his options. He had said, I have pointed out, what materials he had
in mind, though it is clear when one looks at the earlier correspondence that
the materials he had in mind were materials from which he would choose,
therefore he was not at the stage of making his application saying what would
be used, but merely what might be used and that he would make up his mind about
it as things went on. If that was the wrong way for the planning authority to
understand the letter of 23rd August 1997, Mr Lovejoy had an opportunity to
make the matter clear because a further letter was written to him on
25. That
letter, which gave Mr Lovejoy an opportunity to respond and to correct the
error on the part of the planning authority, if indeed he thought they had
misunderstood him, was neglected by him.
26.
Looking at it through the eyes of a planning authority, they clearly did not
regard Mr Lovejoy as having tied himself down in such a way as to be specific.
They still considered that he had a range of materials in mind to which he
would not tie himself down but intended to make his decisions as the
development took place. If the planning authority were entitled to read the
application in that way then the application did not comply with the
requirement on the order that the materials should be specified in the
application.
27. Mr
Willars can only attack the decision once I have construed the statutory
provision, as I have, if he can say that the planning authority's reading of
the application, in the light of all correspondence, was
Wednesbury
unreasonable. It, plainly was not. If
28. Mr
Lovejoy was misunderstood, and for myself I find no indication that he was, he
had only himself to blame. Indeed, he gives the impression of someone in his
correspondence with the planning authority who was looking for disagreement
rather than seeking to co-operate in the application he wished to make with a
view to getting either a certificate that approval was not necessary or, if it
was, approval. For those reasons, this application for judicial review is
dismissed.
29.
There is a further matter, however, which I should deal with. If Mr Lovejoy
made out his point on the construction of the relevant provision, Mr Forsdick
says that still he should have pursued the alternative remedy open to him under
section 192 of the Act to apply for a certificate of lawful intended
development. In those circumstances, it would have been necessary for the
planning authority to decide whether there had been a valid application because
that would affect the question of what was the lawful permitted development. If
30. Mr
Lovejoy was dissatisfied, he would have been able then to appeal to the
Secretary of State. The question of the validity of the planning application
would have been considered. Also, there would have been considered the
question whether this was, in any event, development of land which fell within
Class A of Schedule 2 to the Order and so, argues Mr Forsdick, judicial review
was not the appropriate remedy for the applicant to seek here. He had an
alternative remedy which he should have pursued.
31.
Had I found in favour of Mr Lovejoy on the construction of the relevant
provision in the order, I would not have been inclined to refuse relief because
the point he makes on the order is a question of law, namely, a question of the
construction of the relevant provision in the order. However, he has failed.
This application is dismissed.
32. MR
FORSDICK: I am grateful. There is one point in your Lordship's judgment where
your Lordship referred to a letter of 27th August when I believe your Lordship
was in fact referring to a letter of 11th August. Perhaps that can be noted?
38. MR
WILLARS: My Lord, we are getting confused. Your Lordship referred to the letter
of 23rd August on two occasions. On the first occasion your Lordship meant the
letter of 11th August. The second occasion, when your Lordship referred to it,
your Lordship was quite right. The only other matter was when your Lordship
moved on to the facts -- and this will help the shorthand writer -- you said
the application was made on 1st July. It is perhaps important for the
chronology that it was received on 1st August.
39. MR
JUSTICE JOWITT: Yes. After the application was made on 1st July will you add
and was received by the respondent on 1st August. Thank you very much.
40. MR
WILLARS: My Lord the applicant is legally aided. I think my learned friend has
notice of the application.
41. MR
FORSDICK: We have not received the certificate of legal aid. We would still be
asking for our costs, in any event, on the standard terms.
42. MR
JUSTICE JOWITT: Could you resist that on the usual terms, not to be enforced
without leave of the court?
44. MR
JUSTICE JOWITT: The applicant will pay the respondent's costs not to be
enforced without leave of the court.