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Cite as: [2009] EWHC 2119 (Admin)

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Neutral Citation Number: [2009] EWHC 2119 (Admin)
CASE NO: CO/5579/2009


The Courthouse
1 Oxford Row, Leeds LS1 3BG
12 August 2009

B e f o r e :

His Honour Judge Behrens
sitting as a Judge of the High Court
B E T W E E N:


- and -


Eric Owen (instructed by Gordons of Leeds) for the Claimant
Alan Evans (instructed by The Treasury Solicitor) for the Defendant



Crown Copyright ©

    1. Introduction

  1. This is an application under section 289 of the Town and Country Planning Act 1990 for permission to appeal to the High Court against the decision of an Inspector appointed by the Secretary of State to determine an appeal by the Claimant against an enforcement notice issued by Bradford MDC on 19th August 2008 and expressed in a Decision Letter dated 8th May 2009.
  2. The Enforcement Notice relates to a piece of land at Cherry Tree Barn, Street Lane, Morton, Keighley. It is common ground that Mr Crosswaite purchased Cherry Tree Barn from Mrs Horner in or about 2006. A plan of Cherry Tree Barn shows that to the west and slightly to the south of Cherry Tree Barn (but within Mr Crosswaite's title) is a rectangular piece of land which is the subject of this application. It is common ground that sometime in late 2006 Mr Crosswaite commenced work on the land which had the effect of taking some of the land within the garden curtilage of Cherry Tree Barn and also including the construction of some structures. It was this work that gave rise to the service of the Enforcement Notice.
  3. The breaches of planning control as alleged in the notice are:
  4. 1. the unauthorised material change of use of land from agricultural purposes to domestic residential cartilage;
    2. unauthorised engineering operations to create a formal terraced garden with stone walling, rockery and the installation of a hot tub;
    3. The unauthorised erection of timber decking and a pergola.
  5. The appeal before the Inspector raised a number of grounds that is to say those contained in section 174(2) (c), (d) and (f) of the 1990 Act as amended. In his decision letter all of the grounds were rejected. In the result, subject to a number of minor and immaterial amendments the Inspector upheld the Enforcement Notice.
  6. In this application Mr Crosswaite seeks to challenge the decision of the Inspector on the ground contained in section 174(2)(d) only. In particular he contends that as at 19th August 2008 the Inspector ought to have found that no enforcement action could be taken in relation to alleged breach of planning control. In support of this he relies on section 171B(3) of the 1990 Act which provides:
  7. In the case of any other breach of planning control, no enforcement action may be taken after the period of 10 years beginning with the date of breach.
  8. It was Mr Crosswaite's case before the Inspector that the land had been used as an accretion to the garden of Cherry Tree Barn for at least 10 years before the issue of the Enforcement Notice. Thus he contended that enforcement action was precluded.
  9. As already noted the Inspector rejected Mr Crosswaite's argument. It will be necessary to look at the Inspector's decision in more detail later in the judgment. For present purposes it is sufficient to note that in paragraph 9 of the decision letter the Inspector found that :
  10. The evidence points to a significant break in continuity of any garden or recreational use in the period before commencement of the engineering works by Mr Crosswaite in 2006
    The recreational use of the paddock by Mr and Mrs Horner did not subsist for a 10 year period prior to 2006 sufficient to gain lawfulness.
    There was not a dormant lawful use of the paddock area at the time Mr Crosswaite acquired the property in 2006 and it was not immune from enforcement action.
  11. The essential issue in this application is whether it is arguable that the Inspector was not entitled to reach that conclusion. Mr Owen on behalf of Mr Crosswaite submits that it is arguable that the decision was flawed. He submitted that the Inspector misdirected himself and/or misinterpreted the evidence in concluding that the land had returned to rough pasture by 2006 and that there had been the significant break in continuity referred to above. He also submitted that valuable guidance into the nature of a garden could be obtained from the judgment of Moses LJ in the case of Rockall v Department of Environment [2008] EWHC 2408 (Admin).
  12. Mr Evans on the other hand submitted that the proposed appeal was not seriously arguable. It was an impermissible attempt to persuade the court to reverse what were in effect findings of fact by the Inspector. There was ample material before the Inspector not least from Mr Crosswaite himself to justify his conclusion. The summary of the evidence by the Inspector was perfectly adequate and accurate. Whilst it is true that one part of Mrs Horner's oral evidence was not mentioned by the Inspector that did not vitiate his overall conclusion. He went on to submit that little or no assistance could be gained from the decision in Rockall.
  13. 2. The material before the Inspector

    2.1 The evidence of Mrs Horner
  14. Mrs Horner produced a short written statement in which she stated that she had lived at Cherry Tree Barn from 1993. She said that the relevant land was continually used by herself and her husband for their pleasure all the time they lived at the house. She said her late husband took great care of the land mowing it regularly as and when needed. It was used as a small family golf course. In addition it was used for summertime activities such as barbeques, children's parties and family gatherings.
  15. It is also plain from a witness statement from Mr Philip Coote, the expert employed by Mr Crosswaite that Mrs Horner gave oral evidence. In paragraph 5 of his statement Mr Coote summarises Mrs Horner's evidence:
  16. In all that time (i.e during her occupation) the land had been used as a garden to Cherry Tree Barn and from the mid 1990's till her husband's death in 2004 used in part as a mini golf course along with recreational use for barbecues and children's play. She further stated that whilst the land was mowed very regularly by her husband the maintenance in terms of mowing, was on a far less frequent basis between 2004 and 2006 when she sold the property to Mr Crosswaite.
  17. There is no transcript of Mrs Horner's evidence but Mr Evans was prepared to accept, for the purpose of this application only that Mr Coote's summary was accurate.
  18. 1. Photographs produced by Mrs Horner
  19.  Mrs Horner produced 4 photographs dated between June 1999 and June 2000 showing the land mowed and the golf green in the middle. One appears to show Mr Horner together with a child on the tractor in the act of mowing the grass.

    2.3 Mr Crosswaite's evidence
  20. Mr Crosswaite gave evidence before the Inspector. There is no summary of his cross-examination. However in paragraph 8 he comments on a photograph exhibited by Bradford MDC and to which I shall refer shortly:
  21. The Council show photos taken by a neighbour of the engineering works taking place and the extended garden area in a poor state and not well maintained and claim that the use as a garden ceased. That of course is not the case. Naturally between sales of the property the land was not maintained and once I had purchased the site and wanted to alter the garden using machinery there was no point in maintaining the lawn until works had finished. Once they were completed the land was again mowed and used for garden. These processes did not take the land out of residential use.
  22. Mr Evans relies on this passage in support of his submission that the Inspector was entitled to find the significant break in continuity referred to in the decision letter.
  23. 2.4 Letters exhibited by Mr Crosswaite
  24. In Appendix 2 of his witness statement Mr Crosswaite exhibited letters from John Smith, Richard Metcalfe, Mark Busfield, David Wolversen, Alan & Doreen Wright and Lewis Robertshaw. It is not necessary for me to summarise them in detail. Suffice it to say they are all relatively short and do not condescend to massive detail. None of them is specific as to the precise date when Mr Horner started to mow the land. Although there are references to the golf played by Mr Horner none of them deals with the period after his death in 2004.
  25. 2.5 The Aerial Photographs
  26. Bradford MDC put a number of aerial photographs dating between 1997 and 2006 before the Inspector. The photograph taken in 2002 gives a clear indication of the golf green. The photograph in 2006 is not easy to follow but it is difficult to see from this photograph any difference between the land in question and the neighbouring land.
  27. 2.6 The photographs taken by the neighbour in 2006.
  28. Mr Crosswaite's neighbour Jeremy Benn took a number of photographs in the 8 month period prior to May 2007. Of particular significance is a photograph taken just before work commenced in late 2006. That photograph shows much the same area as one of the photographs taken of Mr Horner in 1999 or 2000. Although it shows 2 leylandi the area has the appearance of rough pasture with weeds and thistles growing. There is no indication on the photograph that the land has been mowed at all recently. This is in marked contrast with the actual garden of Cherry Tree Barn which can be seen in the picture on the following page.
  29. 3. The decision of the Inspector

  30. The Inspector deals with the evidence in paragraphs 7 to 9 of the decision. In paragraph 7 he deals with the evidence of Mrs Horner. He summarises her evidence of Mr Horner's use of it and refers expressly to the photographs taken in 1999 and 2000. He refers to the golf and the use for barbeques and the like. He also refers to the letters from other local residents. He does not deal with the letters in detail but, as I have noted the letters do not deal with the position after 2004 in any detail. He makes no reference to the evidence of mowing after the death of Mr Horner.
  31. In paragraph 8 he deals with the evidence of Mr Crosswaite. In particular he noted that Mr Crosswaite acknowledges that the paddock area was not maintained as a garden for some time when the property was put up for sale and the carrying out of the engineering works. He noted Bradford MDC's aerial photographs and the photographs from Mr Benn. He concluded that these photographs show
  32. The paddock to have returned to a natural state of rough untended pastureland.
  33. He referred expressly to the Rockall judgment.
  34. In paragraph 9 he concludes that the aerial photographs show the putting green in 1997 and that the use was discontinued sometime after 2000.
  35. 4. The Rockall decision

  36. It is common ground between Mr Owen and Mr Evans that the Rockall decision was not a planning decision. It involved an appeal against a conviction of felling growing trees without a licence. If the land on which the trees were felled was a garden Mr Rockall was not guilty. It was common ground that the land had at one time been part of the garden but it was held by the Crown Court that it had ceased to be a garden because of
  37. The disuse into which it had fallen because Mr Blackwell did not have the resources and perhaps he did not feel he needed to enjoy the land as a garden. Mrs Goldman was in New Zealand and unable to do. In those circumstances the court relied on the fact that it had become "relatively" heavily wooded and occasionally boggy. In those circumstances the court concluded that over that 30 years it had ceased to become a garden.
  38. The appeal was allowed. In paragraph 15 and 16 Moses LJ said:
  39. 15. " The court was guided by the decision of the High court in McInerney v Portland Port Limited [2001] 1 PLR 104 . That case is authority for the principle that in order to identify whether land comprises of garden, it is necessary not only to look at its appearance and its characteristics, but also to its use. Latham LJ, in giving judgment, referred to the definition of garden in the Oxford English Dictionary, but described that definition as deficient in detail. I am not surprised. The dictionary to which he referred described an enclosed piece of ground devoted to the cultivation of flowers, fruit or vegetables. Christopher Lloyd would be turning in his grave at such a description, and Beth Chatto would regard that as wholly inadequate given the current fashion for wild flower gardens and meadows .
    16. The reality is that no description of land will conclusively establish whether that land is a garden for this important reason: that it is also incumbent upon the fact-finder, determining a controversy as to whether land comprises a garden or not, to consider its use. As Blake J said arguendo , it is important to look at the relationship between the human occupier of the land and the space; I understand him to mean that it is necessary to look at how the particular occupier in question used the land. "
  40. In his submissions Mr Owen criticised the Inspector for failing to consider the use of the paddock. Mr Evans makes the point that this case is not about whether the paddock was a garden. Rather the question was whether there had been continuous use for recreational activities for the requisite period of 10 years.
  41. 5. Conclusion

  42. I am conscious that my task is only to determine whether there is an arguable point of law in the appeal. However having considered the matter in some detail I have come to the clear conclusion that Mr Evans' submissions are to be preferred and that any appeal would be hopeless. In particular:
  43. 1. In my view the Inspector did summarise the evidence fairly and made reference to all of the important pieces of evidence.
    2. In my view it was open to the Inspector to conclude that there was a significant break in continuity of any garden or recreational use of the land. That conclusion was supported by the evidence of Mr Crosswaite himself, the aerial photographs and the photograph of Mr Benn. In my view there was evidence that entitled the Inspector to conclude the land had returned to a state of rough untended pastureland. It seems to be inconceivable that Bradford MDC could, during that period, have issued an effective Enforcement Notice in relation the use of the land for recreational or garden use.
    3. It is true that the Inspector did not refer expressly to Mrs Horner's evidence as to very occasional mowing after the death of her husband. In my view he did not need to do so. The failure to do so does not in my view vitiate his conclusion on the evidence.
    4. I agree with Mr Evans that the Rockall decision is not directly in point. It is, however, clear that the Inspector did in fact consider the use of the land when he decided it had returned to untended pasture land.
  44. In all the circumstances I would refuse permission to appeal.

    Wednesday 12 August 2009


    UPON HEARING Mr Eric Owen for the Claimant and Mr Alan Evans for the First Defendant there being no appearance by the Second Defendant


  46. The application by the Claimant for permission to appeal against the decision of the First Defendant's decision dated May 8, 2009 be refused
  47. The Claimant do pay the costs of the First Defendant in the sum of 4521.00

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