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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)
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Cite as: [1999] EWHC Admin 355

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CARADON DISTRICT COUNCIL Ex parte LOVEJOY, R v. [1999] EWHC Admin 355 (26th April, 1999)


IN THE HIGH COURT OF JUSTICE CO/3280/97
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

Royal Courts of Justice
Strand
London WC2

Monday 26th April 1999


B e f o r e:


MR JUSTICE JOWITT

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REGINA

-v-

CARADON DISTRICT COUNCIL

Ex parte LOVEJOY

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Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HG
Telephone No: 0171 421 4040
Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR M WILLERS (instructed by Messrs Battens, Yeovil) appeared on behalf of the Applicant.

MR D FORSDICK (instructed by the Solicitor to the Caradon District Council) appeared on behalf of the Respondent.

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J U D G M E N T
( As Approved by the Court )
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Crown Copyright



Monday 26th April 1999

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

Ognall J.

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:


"The carrying out of a 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."

6. Section 57(1) of the Act provides:


"Subject to the following provisions of this Section, planning permission is required for the carrying out of any development of land."

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:


"The carrying out on agricultural land comprised in an agricultural unit of five hectares or more in area of --

(a) works for the erection, extension or alteration of a building ... which are reasonably necessary for the purpose of agriculture within that unit."

9. Article A1 provides that certain development is not permitted by Class A. Article A2 provides:


"(2) Subject to paragraph (3), a development consisting of --

(a) the erection, extension or alteration of a building;

...

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

...

(ii) the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid."

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:


"(iii) The development shall not be begun before the occurrence of one of the following --

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

or

(c)(c) the expiry of 28 days following the date on which the application was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination."

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:


"The development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out --

(b)(b) where prior approval is not required, in accordance with the details submitted with the application."

13. It seems to me there is no sufficient degree of specificity if all that is required of the applicant

is that he should specify a range of materials but reserving to himself the freedom to choose which one or more of those materials he will use in the proposed development. I have no hesitation in concluding that the phrase which I have to construe is to be construed as being a reference to the materials which will be used if the development is carried out. The phrase does not refer simply to materials which may be used or one or more of which may be used if the development is carried out. So much for the point on construction. I come now to deal with the facts which are set out in the correspondence.

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 --:


"With regard to the land edged red on the map, I wish to carry out the activities listed on the addenda in letter reference Priornot-R/97 (dated 2nd May 1997)."

15. To that letter he received a response from the planning authority (the respondent in this case) dated

5th August in which it was pointed out to him that it was crucial that he provided clear information about the exact nature of the proposal for development in order that a determination could be made and whether prior approval was required. The applicant responded in a letter dated 11th August 1997 which was accompanied by a letter first sent to the respondent on 10th August 1996 in connection with an earlier application and now re-dated 11th August 1997. The first letter reads in part:

"This is only a precursory view, the exact location and materials being chosen on a dynamic basis, the materials and exact positions will be decided later.

After a University Course on Eastern architecture, last semester, cob is not the preferred material as there is little sub-soil available on the site. The trustees desire that any structure built on the land would preferably be made from on site materials, in this case, stone may be used extensively. Maybe wood, who knows?"

16. The re-dated letter accompanying this says in paragraph 2:


"Permanent sheds or buildings with a base of stone, constructed of wattle and daub, cob or rammed earth or slate. Roofs to be wood and thatched with reeds. External walls may be rendered with ochre and/or limed, being brown or white or some shade between."

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:


"It is necessary for you to clarify exactly the materials to be used."

19. He went on to say:


"Please confirm the exact location and materials to be used."

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:


"I have spent the last week or two in something of a quandary as to how best to answer your letter.

1. 2. I have taken legal advice and consider I have given you every opportunity to respond in a consistent and clear manner.

1. 3. Your request for more detailed information goes beyond the scope of the PNA [prior notification application].

1. 4 Should a PNA have to include ... an exact description of materials to be used, then there would be no point in asking for a PNA.

6. 1 You have had the information contained in

(b) type of materials to be used, (stone, mud, wood, thatching -- in various amounts)."

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:


"You have had the information contained."

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

29th August 1997 in which there appear these sentences:

"The remaining information now required to enable this application to be registered are the specific materials to be used for each element of the proposed works. Your last letter refers to the use of stone, mud, wood and thatching and the preceding letter states that such materials will be chosen on a 'dynamic basis'. In order for the application to be registered it is necessary for you to describe precisely the materials to be used in respect of each the proposed works."

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?


33. MR JUSTICE JOWITT: Just give me the page reference, please.


MR FORSDICK: Page 147.

34. MR JUSTICE JOWITT: That is indeed the 11th of August.

35. That is the letter which talks about about precursory material.


36. MR WILLARS: In fact your Lordship referred to the

23rd August, not 27th. It might assist the shorthand writer.

37. MR JUSTICE JOWITT: Yes. I referred to the letter at

page 154. I hope I referred to it as the letter of
23rd August. If I said the 27th, it was wrong, it was the 23rd August.

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?


43. MR WILLARS: I could not resist that.


44. MR JUSTICE JOWITT: The applicant will pay the respondent's costs not to be enforced without leave of the court.


45. MR WILLARS: My Lord, may I have an order for legal aid taxation.


46. MR JUSTICE JOWITT: Yes. Legal aid taxation.


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© 1999 Crown Copyright


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