Appeal Decision
Inquiry commenced on 19 April 2016
Site visit made on 21 April 2016
by Graham Dudley BA (Hons) Arch Dip Cons AA RIBA FRICS
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 28 June 2016
Appeal Ref: APP/L1765/C/15/3133535
Inhams Field, Inhams Lane, Denmead, Winchester, Hants PO7 6LX
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The appeal is made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
The appeal is made by Matilda Holdings Limited against an enforcement notice issued
by Winchester City Council.
The Council's reference is 13/00054/USE.
The notice was issued on 3 August 2015.
The breach of planning control as alleged in the notice is the material change of use of
the land from agriculture to use for siting caravans for residential purposes.
The requirements of the notice are 1. cease the use of the land for residential purposes,
2. remove caravans, awnings, sheds, plant pots, tables, chairs and all other domestic
paraphernalia from the land, 3. remove the portable toilet from the land.
The period for compliance with the requirements is 4 months.
The appeal is proceeding on the grounds set out in section 174(2) (a), (d) and (g) of
the Town and Country Planning Act 1990 as amended.
Procedural Matters
1. The inquiry was held on 19, 20 and 21 April 2016 and the site visit was held on
21 April 2016. Evidence was taken under oath.
2. For the purpose of this appeal it is common ground that the residents of the
appeal site do not have gypsy status and that the relevant planning unit is the
area marked by the red line of the enforcement notice.
3. It is unfortunate that this has caused former friends to fall out and is now a
significant matter between neighbours. I acknowledge that one interested party
in particular has been very active in seeking support against the proposal.
However, I do not consider that is indicative of unreasonable behaviour. With
this type of situation it is sensible to ask others if they have any evidence
related to the matter. While I acknowledge that in some of the correspondence
the argument is weighted, the request for information was not. It simply asked
if anyone has any information related to the use to bring it forward. While the
appellant did not do this in the form of leaflets, it is clear that they asked
friends and acquaintances that had visited the site to provide information in a
similar way. I attach little weight to this matter.
Decision
4. The enforcement notice is to be corrected: by inserting ‘(three pitches)’ after
‘caravans’ in the allegation. The appeal is allowed on ground (g), and the
enforcement notice is to be varied: by the deletion of four months and the
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substitution of 12 months as the period for compliance. Subject to this
correction and variation the enforcement notice is upheld and the deemed
planning application refused.
Reasons
Ground (d)
Length and pattern of use
5. There are currently 3 touring caravans used for residential purposes on the
appeal site, but historically there have at times been five and these were
roughly in the position of the 5 marked pitches, although the actual position of
the caravans has varied a little around the marked positions. The appellant
acknowledges that, even taking its own evidence on use, there have been
some considerable breaks in the continuity of the use on some of the five
pitches. The use that is claimed to have occurred should be considered in
relation to three pitches that the appellant says have been in use continuously
for 10 years prior to the enforcement notice. I will correct the allegation to
relate to 3 pitches.
6. The site has been used for the stationing of caravans for residential use from at
least 1987, when it was a registered site with the Camping and Caravan Club.
It remained a registered site up until 1994. Use by stationing caravans for
residential occupation by members of certain recreational organisations is
permitted development. The Camping and Caravan Club is an organisation
exempted under the Public Health Act 1936. The current club rules indicate
that any person using one of its site sites must not stay for a period of more
that 28 days and then must not return within 24 hours. I also note the history
of Lawful Development Certificate applications and the planning application,
which are set out in the Statement of Common Ground.
7. The use following the de-registration of the Camping and Caravan Club would
not have been covered by permitted development and further use for the
stationing of caravans for residential use would have been unauthorised.
8. The appellant presents evidence for use of the site from about 2001 and this is
supported by other interested parties evidence, although the continuity/extent
of that use is disputed.
9. The former owner/manager of the land and subsequently the manager of the
land after transfer of ownership, until almost up to her death, was Greta
Bendall. Greta was well informed on planning matters and sat on the parish
council with at least two interested parties that oppose the appellant in this
appeal and was involved in planning matters of the parish council. Their
evidence indicates that she led them to believe that the site was a Camping
and Caravan Club registered site for much of the relevant period. A sign was
left in place to that effect at the entrance of the field.
10. One person who visited her regularly even noted that she turned people away
until they had Camping and Caravan Club membership. She indicated to them
that she ensured that it was being run as a club site, requiring people to move
off the appeal site with the period of 28 days being noted, although the period
that interested parties say they were off the site varied. Sometimes caravans
would be moved off the front site to the back field for up to 6 weeks, and in the
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early days some indicate that the site was closed over winter, with no caravans
at the appeal site or in the back field.
11. The appellant’s witnesses agree that they did move off the site onto the back
field, but this was for short periods while the field was being mowed, which the
person that cut the grass up until about 2005 indicated was twice a year in
spring and autumn. However, the physical evidence on either side relating to
the time of occupation of the appeal site and occupation off site is limited.
12. There is oral evidence on each side to support the claims on occupation being
made and it seems to me, not unreasonably, that the passage of time has an
effect on recollections. Generally considerable weight should be placed on the
appellant and those using the field. However, in this case the evidence from
those opposing the appellant include neighbours that back onto the back field,
casual users of the field, and good friends of Mrs Bendall that undertook some
tasks for her, including in relation to the field. In terms of personal evidence
and weight I consider that neither side is preferential in itself.
13. The one piece of physical evidence is an undated aerial photograph. However, I
accept this is from the period indicated by the interested parties, because it can
be clearly related to when the adjacent house was altered. This shows the
appeal field empty and up to about 7 caravans in the back field. There is little
evidence of dead grass at the appeal site from beneath the caravans, which
would be expected if only the very short periods of removal occurred as
suggested by the appellant. There is little evidence of paths formed by vehicles
to caravans in the appeal field. Conversely, there is what appears to be a wellworn route in the back field to at least one of the caravans, suggesting more
than just a short stay in the rear field. On the whole, this provides more
support for the interested parties’ version of occupation.
14. I also found the evidence related to a particular incident of dropping wood off
for the bonfire blocking the site entrance to be persuasive. This is a notable
event and would have meant the field was inaccessible while the wood was in
position (there is no other entrance). This would have been a very good reason
to go around those on site and warn them of the problem. No one was found to
be on the site and those on the site had no recollection of it, which would be
the case if they were not there.
15. In essence, I do not consider that the appellant has demonstrated on the
balance of probability that the use has been in accordance with its version of
events and to some extent it does support the interested parties’ assertion that
the site was in appearance being managed to break ‘28 days’ use of the site.
Even so, the fact remains that the site was being used in an unauthorised
manner, not as permitted development with an approved recreational
organisation.
16. The council say that at times of the regular move from the appeal site to the
back field there would have been no breach and enforcement action could not
have been taken. I do not accept this approach to the use. It is quite clear that
the pattern of use was intended and was fairly regular. Even when the
caravans moved for the winter in the early days they returned on a regular
basis.
17. There were no significant physical changes to the field, with the main
infrastructure being mains water and for some of the time a removable toilet.
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The mains water could have served an agricultural use. I do not consider that
these physically changed the field or prevented other uses in between the
stationing of the caravans.
18. However, there is no substantial evidence of the appeal site being used for any
other purpose while the caravans were away from it. One witness indicated
that she saw horses in the field, but many of the other interested parties that
saw the field regularly did not. One resident backing on to the back field did on
at least one occasion see horses in the rear field and perhaps there was some
confusion. I therefore do not consider on the balance of probability that there
was any intervening use of the field, it remaining notionally available for
agricultural use, but between the use for stationing of the caravans effectively
remained dormant.
19. I conclude that there was as a minimum a permanent mixed use of the appeal
site for the stationing of 3 touring caravans for residential use and agricultural
use, albeit dormant. Therefore, it would have been possible to take
enforcement action against the use. As this occurred from at least 2001, it
would gain lawfulness because it has occurred for longer than 10 years.
Deliberate Concealment
20. There is no argument that the actual use of the site for the stationing of
caravans for residential use was not physically concealed; the caravans can be
seen from the road. The appellant argues that without deliberate concealment
of ‘physical’ development there can be no case of deliberate concealment. I do
not accept this. If there are deliberate actions that conceal the development
that is occurring and which means that enforcement action that was likely to
have been taken, had that concealment not occurred, was not taken, that in
my view is relevant.
21. As identified above, the former owner and the manager of the site indicated to
various interested parties that the site was a Camping and Caravan Club site
and was being run and managed in that way. The sign indicating it as a
Camping and Caravan Club site was left in place after de-registration in 1994.
The evidence provided indicates that Greta Bendall continued to manage the
appeal site in the same way and it was not unreasonable of the council to
contact her to discuss the appeal site and its use. Had she not been the right
person she could have refused to discuss the site and identified who should be
contacted. I appreciate that Greta Bendall is no longer alive and cannot clarify
what occurred at the site visit, but there is a detailed record of findings and it
is reasonable to place considerable weight on this.
22. The council enforcement officer visited Greta Bendall in 2006 on two matters.
Firstly for unrelated car storage etc. on land behind Inhams Farm House and
secondly he had been asked to investigate another issue relating to the
caravans on the field adjacent to Inhams Farm House. From the file note and
correspondence, it is plain that Greta Bendall furnished the officer with the
information needed and on that basis he concluded that it was ‘clearly a
certified caravan site’ and not a breach of planning control. A photograph was
also taken of the Camping and Caravan Club sign. This information was
confirmed back to Greta Bendall by letter of 15 November 2006. She did not
take the opportunity to contradict or correct the information that she had given
or the false impression given to the officer. She would have known the
importance of this given her involvement with the Parish Council.
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23. I accept that she did discuss with Mr Deane, who is a camping and caravan
club member and the person that organised the bonfire event, the registration
of the field and that he was aware of the status. However, there is no evidence
to show that Mr Deane shared this information with anyone, including the
council, and it does not get over the fact that the council officer at his visit to
investigate the situation was given incorrect information, which even after
confirmation of his findings based on that information, was not corrected. It
was deliberate concealment of the use.
24. The appellant suggests that the council could have issued a Planning
Contravention Notice and checked Camping and Caravan Club registration etc.
In my experience a Planning Contravention Notice is used when the council
suspect there is a contravention and would follow a meeting such as the officer
had at the site. If he was given sufficient information to conclude that there
was no contravention, then I see no reason why he should have followed this
visit up with a Planning Contravention Notice. Similarly, given the clear
conclusion that was reached following discussion and visit to the field I see no
reason why the officer would doubt that information or have the need to follow
up the investigation.
25. I conclude on the balance of probability that had the council officer not
deliberately been given false information, the actual use would have been
identified and action would have been taken and that action would have
prevented the 10 years continuous use accruing, this having occurred in the
middle of the ’10 year’ period; the appeal should therefore not succeed on
ground (d).
Ground (a)
26. The main issue is the effect on the character and appearance of the
surrounding area.
27. The development plan includes the Winchester District Local Plan Review [LP],
the Winchester District Local Plan Part 1-Joint Core Strategy [JCS] and the
Denmead Neighbourhood Plan [NP].
28. There is a dispute as to whether LP Policy DP3 applies. The text accompanying
the policy refers to all new development proposals which involve the
construction of new buildings or the replacement, adaption, conversion or
extension of existing buildings. The policy itself refers to ‘Development’ without
distinguishing between operational and change of use. There is a conflict
between the two parts. Where there is dispute between the accompanying text
and policy it is generally appropriate to rely more on the policy than text. Most
of the criteria within the policy could be applied to a change of use as well as
operational development. I therefore consider that as the policy wording could
be applied to operational as well as change of use, it should be considered as
being intended to apply to both. In this case LP Policy DP3 requires
development to respond positively to the character, appearance and variety of
the local environment.
29. LP Policy CE19 notes the use of land for the siting of a residential caravan will
not be permitted unless it is for use by an agricultural or forestry worker. There
is no case put forward for need on this basis. LP Policy DP4 indicates that in
order to maintain or enhance the District’s townscape and landscape,
development will not be permitted where it would detract from, or result in the
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loss of open areas important to the townscape. There would be no loss of trees
or hedgerows through the use occurring.
30. JCT Policy MRTA4 notes that in the countryside development that has an
operational need for a countryside location will be permitted, such as
agriculture, horticulture or forestry. There is a dispute about interpretation of
what ‘operational need’ means. In my view, the reading of the policy would
indicate that operational need, while not limited to functions such as agriculture
and forestry working identified, would be of a similar type of ‘operation’ to
those noted. I do not consider that the need of the occupiers to be on the site
relates to this policy, but I acknowledge their ‘need’ to be on the site is a
material consideration. JCT Policy CP20 relates to heritage and landscape
character, requiring development to recognise, protect and enhance the
district’s distinctive landscape. NP Policy 1 provides a spatial plan for the parish
supporting development in the development boundary and those outside being
required to conform with polices related to development in the countryside.
31. The landscape around the village is agricultural fields, in the vicinity appearing
mainly grazing areas, with hedgerows interspersed with trees. It provides a
very attractive rural and open setting for Denmead.
32. The appeal site is an open field in the countryside and is clearly visible from the
adjacent road. The caravans are visible on the site and being bulky, regular,
manmade structures with painted finish are not sympathetic with, but alien and
incongruous features in, the countryside. Together with the associated
paraphernalia and use they cause substantial harm to the character and
appearance of the countryside.
33. I acknowledge that the field was and could in the future be used as a licensed
site and technically a large number of caravans could be on the site year
round. However, I do not accept that with a licensed site that is a likely
scenario and the expectation is that caravans will come and go, leaving the
field relatively unchanged. I consider that the development, with year-round
occupation and associated pattern of use, does not respond positively to the
character or appearance of the landscape, nor does it protect or enhance it, but
detracts from and causes unacceptable harm to its character and appearance.
The development conflicts with LP Policies DP3, DP4 and CE19, JCS Policies
MRTA4 and CP20 and NP Policy 1.
34. The occupation of the site is a strong personal preference of the occupiers and
a particular life style choice and the field location is part of that choice. Some
dogs are on site, but there are no other animals that suggest a field nearby is
necessary. There is little evidence to show that other sites would not be
available, but I acknowledge that finding somewhere as a permanent location is
likely to be difficult. However, the council identifies that they could apply for
other accommodation and financial assistance may be available. That has not
been explored as a matter of personal choice. Therefore, while I acknowledge
the occupiers’ desires and needs, I attach limited weight to them.
35. The occupiers of the appeal site would lose their homes and their family life
would be disrupted if the enforcement notice is upheld. That would represent a
serious interference in their human rights. I consider that it is possible that
some would have to resort to either short term staying on other sites, or have
to take conventional accommodation, with help from the local authority, which
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was indicated would be alien to their wishes. I attach some weight to this need
and effect of the interference.
36. Overall, on balance I conclude that the benefits would not outweigh the harm
to the character and appearance of the surrounding area. I have considered
proposed conditions, including personal and temporary permission. While
noting the length the harm would occur would be less with either of these
options, because of the length the harm would occur, I do not consider these or
other conditions tip the balance in favour of the appellant. I conclude that the
interference with the occupiers’ human rights is justified and the interference
with the occupiers’ human rights would be no more than is necessary to control
the use of the site in the general public interest.
37. I conclude that the development causes unacceptable harm and that it conflicts
with LP Policies, JCT Policies and NP Policy 1 and the appeal on ground (a) fails
and the deemed planning application should be refused.
Ground (g)
38. I accept that the occupiers of the site do not currently have anywhere to go
and that it could be difficult to find a permanent location to live. There was no
evidence to indicate that the occupiers have any security of tenure, but nor
was there any indication that they cannot remain on the site. I consider that it
will take time to find appropriate accommodation, whether looking for
alternative sites, or going through the council, and bearing this in mind and the
interference with the occupiers’ human rights I consider that the time for
compliance should be extended to 12 months. The appeal succeeds to that
extent on ground (g).
Graham Dudley
Inspector
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APPEARANCES
FOR THE APPELLANT:
Martin Edwards
He called
Robert Tutton
Karen Packer
Karen Bath
Jay Shepherd
Lee Adams
Taryn Christmas
Claudia Rose-Dunn
Ron Moger
Phillip Reeves
Of Counsel, instructed by Robert Tutton
FOR THE LOCAL PLANNING AUTHORITY:
Trevor Ward
Of Counsel, Instructed by Howard Bone LLB
(Hons), Head of Legal and Demographic
Services, Winchester City Council.
He called
David Townsend Dip TP
MRTPI
David Clementson
Judy Clementson
Samantha Clementson
David Pass
Christopher Deane MBA
MIET
Paul Ransom
Team Leader, Planning Enforcement, Winchester
City Council
INTERESTED PARTIES:
Philip Brown
Alison Hill
Hannah Mitchener
Felicity Hull
Richard Hallett
Tony Hill
Peter Ambrose
Robin Dawe
Chairman of Denmead Village Association
DOCUMENTS
Document
1
2
3
4
5
6
7
8
Council’s list of appearances
Notification letter
Statement of Common Ground
Letter from Cllr Patricia Stallard
Extract from Planning Practice Guidance
Statement from Mr and Mrs Hill
Note from Richard Hallett
Letter from ‘Heybrook’ School Lane, Denmead
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9
10
11
12
13
14
15
16
17
18
19
Statement from Peter Ambrose
Information regarding council officer visit to Inhams Farm House,
June 2006
Letter David and Judith Clementson
Letter from solicitors to Judith Clementson
Camping and Caravan Club magazine
Camping and Caravan Club example site details
Statement of Felicity Hull
Letter re Dangerous Dogs Act from the council to Tony Hill
Suggested Conditions
Closing submissions of behalf of the council
Closing submissions on behalf of the appellant
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