Appeal Decision
Inquiry and site visit held on 20th May
2008
The Planning Inspectorate
4/11 Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
by Clive Whitehouse
0117 372 6372
email:[email protected]
ov.uk
BA(Hons) MCD
MRTPI
an Inspector appointed by the Secretary of State
for Communities and Local Government
Decision date:
2 June 2008
Appeal Ref: APP/Y3615/C/08/2065431 & 32
Land adjacent to The Bungalow, School Lane, Perry Hill, Worplesdon, GU3
3RB
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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 Mrs Iris Riddy and Mr Russell Riddy against an enforcement
notice issued by Guildford Borough Council.
The Council's reference is EN/07/00190
The notice was issued on 27th December 2007.
The breach of planning control as alleged in the notice is: without planning permission;
(1) operational development comprising the removal of soil to a depth of approximately
0.3m, infill with hardcore and other material, to form an internal road leading from the
adjacent caravan storage site, extending into part of the garden of the residential
property in an oval roadway, in the approximate position shown coloured green on the
attached plan. (2) Operational development comprising fencing off of a part of the
residential garden with a wire fence over 2m in height in the approximate position
shown marked in red on the attached plan. (3) A material change of use of part of the
garden, the approximate position of which is shown hatched in black on the attached
plan to a use in connection with the use for the business of the storage of caravans and
other items.
The requirements of the notice are: (i) completely remove from the land the internal
road including the hardcore and other materials, dispose of the resultant materials and
lawfully reinstate the soil levels using the soil which was deposited on the remaining
part of the garden. (ii) Remove the unauthorised fence or reduce it to less than 2m in
height. (iii) Cease the use of the land other than as a garden and without prejudice to
the generality of the same, in particular cease the storage of caravans and other items
on the land.
The period for compliance with the requirements is 2 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.
Decision
1. I direct that the enforcement notice be corrected:
(i)
by the substitution of the plan annexed to this decision for the plan
attached to the enforcement notice;
(ii)
in paragraph 2 by the deletion of the words “Land and dwelling
known as” and the substitution of the words “Land adjoining”, and by
the insertion of the words “part of” before “the land registered”;
Appeal Decision APP/Y3615/C/08/2065431
(iii)
by the deletion of paragraph 3 and the substitution of the following:
THE MATTERS WHICH APPEAR TO CONSTITUTE THE BREACH OF PLANNING
CONTROL
1. The material change of use of the land to use for the storage of caravans
2. Operational development to form an internal road leading from the adjacent
caravan storage site, comprising the removal of soil to a depth of
approximately 0.3m and filling with hardcore and other materials.
3. The erection of a fence over 2m in height between points A and B as shown
on the plan attached to this decision.
2. I further direct that the enforcement notice be varied by deleting paragraph 5
and substituting the following:
WHAT YOU ARE REQUIRED TO DO
1. Cease the use of the land edged and cross hatched black on the plan
attached to this decision for the storage of caravans.
2. Remove the internal roadway, including the hardcore and other
materials, from the land edged and cross hatched black on the plan
attached to this decision and restore the land to its condition before
the breach occurred.
3. Remove the fence between points A and B and move it or replace it
with a similar fence between points C and D, as indicated on the plan
attached to this decision.
3. I dismiss the appeal and uphold the enforcement notice as corrected and
varied. I refuse to grant planning permission on the application deemed to
have been made under section 177(5) of the 1990 Act as amended.
Background
4. The appeal site has been laid out as an extension to the adjoining authorised
caravan storage site. In early 2007 a roadway was constructed in the form of
a loop from the authorised site in order to facilitate improved caravan storage
over an enlarged area. At the time of the inquiry, 8 touring caravans were
stored on the appeal site, but I estimate, by comparison with the layout of the
authorised site, that the full capacity of the extended area would be for about
40 caravans.
5. Part of the background to this case is a family dispute, which explains some of
the actions that have taken place, although the dispute itself is not relevant.
For the record, Mrs Iris Riddy owns The Bungalow, the adjoining paddock and
the appeal site. She suffers from advanced dementia and her son, Russell
Riddy, has power of attorney over her affairs. His sister and her husband (Mr
and Mrs Topping) live in the grounds of The Bungalow and provide care for Mrs
Iris Riddy. The authorised caravan storage site is jointly owned by Russell
Riddy and Mrs Topping, both of whom run caravan storage businesses there.
It was Mr and Mrs Topping’s complaint about the 2007 works that drew the
Council’s attention to the breach of planning control.
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Appeal Decision APP/Y3615/C/08/2065431
6. An enforcement notice was issued in July 2007 but the appellants’
representatives considered it to be unclear and defective. The present notice
was issued in December 2007. Appeals were lodged against both notices, but
the Council withdrew the first notice in April 2008.
7. Planning permission was granted in 2002 for the continued use of the adjoining
land for caravan storage, and it has capacity for about 120 caravans. In 1976
an enforcement notice was upheld following an inquiry, which required the
cessation of the use of that site (now the authorised site) for the storage,
maintenance, display and sale of caravans. The display and sale of caravans
ceased but the storage use continued and, for reasons that remain unclear, the
Council took no further action. The 2002 application sought to regularise the
situation, and the Planning Officer’s report notes that the Council had not
sought to fully enforce the provisions of the 1976 enforcement notice and
concluded that because of the length of time that had elapsed it would be
unreasonable to refuse the application and insist on the removal of the stored
caravans.
Appeal on Ground (d) - Use for Caravan Storage
8. The appellants’ case is that the appeal site has also been used for caravan
storage continuously for at least 30 years. The Council is not convinced that
continuity of use has been demonstrated and considers that in more recent
years the reduced number of caravans stored on the appeal site should be
regarded as incidental to the residential use of The Bungalow, rather than
being part of the caravan storage site.
9. The Inspector for the 1976 inquiry described the layout and use of the main
site that was subject to that enforcement notice, but he also noted as a finding
of fact that “about 20 tourer caravans were stored in a paddock to the south of
The Bungalow”. The parties agree that those were within the area of the
present appeal site. There is no explanation as to why those were not included
in the enforcement action at that time. An aerial photograph stated to be from
1973 also shows a row of 19 tourer caravans stored in the same paddock along
the line of silver birch trees that mark the boundary with the main site.
10. Russell Riddy has been involved with the running of the caravan storage
business for more than 30 years. His evidence is that the appeal site was used
as an overflow in conjunction with the main site for the whole of that period,
with up to 20 caravans regularly stored there. Vehicular access was gained
only through the main site, and there was no fence or other physical barrier
between the main site and the paddock, other than the line of well-spaced
trees. Corroboration is provided by letters from a number of caravan owners.
An aerial photograph taken in 1999 shows a situation very similar to that in the
1970s, with the roofs of about 14 caravans visible on the appeal site under the
line of trees.
11. The Council has no contrary evidence from that period. On the evidence before
me, I conclude on the balance of probability that between about 14 and 20
caravans were stored on the western part of the appeal site for the whole of
the period between 1973 and 1999. However, there is no evidence that
caravans were regularly stored anywhere other than along the western
boundary.
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Appeal Decision APP/Y3615/C/08/2065431
12. The 1990 Act introduced the “ten-year rule” for changes of use, and section
171B conferred lawfulness on uses which had continued for at least ten years
before the date in July 1992 when that provision came into effect. I conclude
that the use of the western part of the appeal site for storing up to 20 caravans
became lawful in July 1992. Allowing for the necessary manoeuvring space, I
estimate that the use of about half of the appeal site became lawful at that
time. The lawfulness accrued for that part of the site could then only be lost by
evidence of abandonment or by being supplanted by a new use.
13. It seems that for a number of years following Mr Riddy senior’s death in 2000
the appeal site was less actively used than previously. It was used to store
some old caravans moved from the main site, some family-owned caravans
and four caravans containing furniture and other items that had belonged to Mr
Riddy senior. Mr Topping has lived at The Bungalow since 2001 and his
recollection is that there were 7 or 8 caravans along the western boundary of
the appeal site before the improvement works were carried out in 2007. He
says all were owned by family or friends and were not part of the commercial
use of the main site. An aerial photograph dated 2004 shows 10 caravans on
the western part of the appeal site.
14. The Council considers that any caravans on the site during the post 2000
period were ancillary to the residential use. Mrs Iris Riddy owns a sizeable area
of land around The Bungalow, but in my view not all of it can be described as
being part of the residential curtilage. Aerial photographs from the 1970s
onwards, and my own site inspection, indicate that there is a clear distinction
between the ornamental garden with lawns and a kitchen garden, and beyond
that a paddock with rough grass. The 1976 Inspector described the present
appeal site as being part of the paddock. I am satisfied as a matter of fact and
degree for the purpose of this appeal that the caravan storage area has never
been part of the residential curtilage of The Bungalow. That being the case,
the caravans stored on the appeal site in more recent years can not be
regarded as being incidental to the residential use. Even if all the 8 or 10
caravans on the site at that time were owned by family and friends, as Mr
Topping says, that does not alter the fact that they were being stored.
15. The appeal site was fenced off from the land around The Bungalow some time
after the death of Mr Ridding senior, but it has never been fenced off from the
main storage site. I consider as a matter of fact and degree that the western
part of the appeal site was part of the same planning unit as the main caravan
storage site in the 1970s and has remained so, without a material change of
use, to the present day.
16. I conclude on the balance of probability that the lawfulness accrued for caravan
storage on the western part of the appeal site in 1992 has not been abandoned
or supplanted by a subsequent change of use.
17. Turning to the eastern part of the site, there is no evidence that caravan
storage had ever taken place in that area before the 2007 works were carried
out. This point is underlined in my view by Mr Topping’s evidence that there
was a fence in place roughly down the middle of the appeal site in about 2003.
He says that this was later moved eastwards by a distance of about 15 paces
to incorporate part of the paddock. The fence in its present position is visible
in the 2004 aerial photograph, but that photograph also shows a faint line
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Appeal Decision APP/Y3615/C/08/2065431
down the centre of the site, which suggests a former boundary. Several of Mr
Topping’s photographs taken in January 2007 show a straight line of tall
pampas grass planted across the centre of the site. He says these were
planted by Mrs Topping against the fence to screen the caravan storage area as
it existed in 2003 and the plants remained for a period after the fence was
moved. In my view there is no other likely explanation for a line of planting in
that position. This is disputed by Russell Riddy, who states that the present
fence on the eastern boundary was erected in 2000. On the evidence before
me, I find Mr Topping’s evidence more credible on this point, and I conclude on
the balance of probability that there was a fence roughly down the middle of
the site in about 2003 that marked the boundary between what I have now
concluded to be the lawful caravan storage area to the west, and the paddock
to the east.
18. I conclude that it was too late for the Council to take enforcement action in
respect of approximately the western half of the appeal site when the notice
was issued, but not too late in respect of the balance of the site. The appeal
on ground (d) succeeds in part only.
Appeal on Ground (a) - Use for Caravan Storage
19. The appeal on this ground now applies to the use of roughly the eastern half of
the site. The area is in the Metropolitan Green Belt, as defined by the Guildford
Borough Local Plan and the Surrey Structure Plan. Development plan policies
do not specifically address changes of use, and I consider that the most
relevant policy guidance is in paragraph 3.12 of Planning Policy Guidance:
Green Belts (PPG2). This states that material changes of use of Green Belt
land are inappropriate development unless they maintain openness and do not
conflict with the purposes of including land in the Green Belt. Inappropriate
development is, by definition, harmful to the Green Belt. On behalf of the
appellants, it is accepted that caravan storage is inappropriate development.
Since caravan storage reduces the openness of the Green Belt and in this case
has resulted in a further encroachment into a previously undeveloped paddock
area, I also conclude that the change of use is inappropriate development.
20. The main issue under this ground is whether the harm by reason of
inappropriateness, and any other harm, is clearly outweighed by other
considerations. The appellants advance a number of considerations in favour
of the development, which they contend amount to very special considerations
to set against the Green Belt policy conflict. These can be summarised as the
need for caravan storage locally coupled with a shortage of such sites, the
history of the authorised site and the limited visual impact.
21. Having found that the western part of the site has acquired lawfulness by the
passage of time, I consider that these arguments loose much of their force,
when applied to the newly enclosed eastern part.
22. I accept that there is likely to be an excess of demand over supply for caravan
storage sites close to a large and prosperous urban area. However, such
arguments could be applied to almost anything for which there is a strong
demand, and in my view they can not amount to the “very special
circumstances” required to overcome the restriction on development in the
Green Belt.
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Appeal Decision APP/Y3615/C/08/2065431
23. Concerning the history of the main storage site, the Council accepted in 2002
that the site had been allowed to operate in conflict with the original
enforcement notice since 1976, and this was the main consideration to justify
regularising the use. The same does not apply to the land subject to the
ground (a) appeal, which was part of an undeveloped paddock before 2007.
The fact that the appeal site is not prominent in the landscape is not a positive
consideration to set against the policy conflict.
24. I conclude that there are no considerations that clearly outweigh the harm to
the Green Belt by reason of inappropriateness and the adverse effect on
openness. The appeal on ground (a) fails in respect of the use of the eastern
part of the appeal site for caravan storage.
25. I will correct the notice by substituting a plan defining the eastern part of the
appeal site where the requirement to cease the use for caravan storage will
apply.
26. The enforcement notice describes the change of use as having occurred from a
garden, but in view of my conclusion in paragraph 14, above, I will correct the
notice to delete all references to garden land. It is not a requirement for the
notice to specify the previous use of the land. The parties also agreed at the
inquiry that for, clarity and enforceability, the wording of the allegation and
requirements could be simplified to refer more directly to caravan storage.
Appeal on Ground (d) Internal Roadway
27. The roadway constructed in 2007 is in the form of a rectangular loop in the
centre of the site with a single link to the authorised site. Photographs taken
by the Council show excavation to a depth of about 0.3m, a membrane at the
base, hardcore and rubble infill and a top surface of road planings. The
appellant contends that a less formal track had been in place for more than
four years and that the works in 2007 were in the nature of maintenance and
repair.
28. I accept that soft spots may have been filled with hardcore from time to time
on the western part of the site, but the photographic evidence shows no preexisting track as such. I am satisfied that the internal roadway was a new
engineering operation carried out in 2007 and that it was not too late for the
Council to take enforcement action.
Appeal on Ground (a) Internal Roadway
29. I take the view that the track as it exists in the western half of the site is a
reasonable element of the lawful use for caravan storage. In the context of an
established storage site it does not have a material impact on the openness of
the Green Belt and it does not add to the encroachment into the countryside.
However, in the previously undeveloped part of the site, the roadway would
have no purpose once the unauthorised use ceases. It gives that part of the
site a more developed appearance, compared to its previous condition as a
paddock. I consider that the roadway in the eastern part of the site is
inappropriate development in the Green Belt and that there are no
considerations that overcome the harm by reason of inappropriateness and the
small adverse effect on openness.
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Appeal Decision APP/Y3615/C/08/2065431
30. I will refuse planning permission for the roadway within the area defined on the
corrected plan attached to this decision and uphold the requirements of the
notice for that section to be removed. The effect of section 173(11) of the Act
is that, by requiring only part of the roadway to be removed, the other part
within the western half of the appeal site will be treated as having planning
permission once the requirements of the corrected and varied notice have been
complied with.
Appeal on Ground (a) - The Fence
31. Chain-link fencing has been erected on three sides of the appeal site, but there
is no fence between the site and the main storage area. The fencing is about
2.2m high and therefore exceeds the permitted development limit of 2m. The
case of Murfitt v SSE and East Cambridgeshire [1980] established the principle
that ancillary operational works that are part and parcel of an unauthorised use
can be required to be removed and can not acquire immunity under the four
year rule.
32. The small excess in height over the permitted development limit is of little
significance in itself but, together with the roadway within the eastern part of
the site, they give a more developed appearance to that area of land. Also,
because the fence presently encloses a larger area than is lawful for caravan
storage, I consider that its retention in that position would make it extremely
difficult for the Council to enforce the requirements of the corrected notice,
since there would be no impediment to caravans being placed beyond the
lawful area. For these reasons, I consider it necessary to refuse planning
permission under ground (a) for the eastern boundary fence in its present
position and to vary the requirement of the notice to the effect that it should be
moved back to the boundary of the lawful caravan storage area (as indicated
on the plan attached to this decision).
33. The fence along the southern boundary of the appeal site is part of a longer
fence enclosing a coppice, and I consider that it is not necessary to require that
fence to be removed or altered. Similarly, the fence along the northern
boundary is placed against a tall conifer hedge that encloses part of the garden
of The Bungalow and I consider that it is not necessary for that to be removed
or altered. I will vary the requirements of the notice to exclude those sections
of fencing.
Appeal on Ground (g)
34. The appeal on this ground now relates to the varied requirements of the notice
– those being to cease caravan storage on the eastern half of the site; to
remove the roadway from that area and to move the eastern boundary fence.
35. The appellants argue that longer than two months is necessary because
agreements have been entered into with caravan owners until the end of 2008
and it would then take until February 2009 to complete the works required.
36. At the time of my site inspection there were two caravans on the eastern part
of the site, which Mrs Topping identified as hers. I therefore take it that there
would be no contractual problems with their relocation. There were plenty of
spaces available on the lawful part of the site.
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Appeal Decision APP/Y3615/C/08/2065431
37. I consider that two months is a reasonable period for compliance with the
varied requirements, and the appeal on ground (g) fails.
Conclusions
38. For the reasons given above, and having regard to all other matters raised, I
conclude that the appeal should succeed in part on ground (d) in respect of the
use of the western part of the site for caravan storage. The appeal on ground
(d) fails as it relates to caravan storage on the eastern part of the site and the
formation of an internal roadway. I further conclude that the appeal should not
succeed on ground (a) in respect of the use of the eastern part of the site for
caravan storage, the formation of an internal roadway in that area and the
eastern boundary fence. I shall uphold the enforcement notice and refuse to
grant planning permission on the deemed application as it affects that area.
39. Accordingly, I will substitute a corrected plan defining the area within which the
varied requirements of the notice will have effect.
C Whitehouse
INSPECTOR
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Appeal Decision APP/Y3615/C/08/2065431
APPEARANCES
FOR THE APPELLANT:
Jonathan Clay
He called
Of Counsel, instructed by Mr Stallan of Alliance
Planning
Russell Riddy, joint appellant
Andrew Stallan, BA(Hons) DipUPI MRTPI
FOR THE LOCAL PLANNING AUTHORITY:
Scott Stemp
He called
Of Counsel, instructed by the Head of Legal and
Professional Services
Michael Topping (neighbour)
Josie Smith, Principal Planning Enforcement
Officer, BTP TMRTPI
DOCUMENTS submitted at the inquiry
1
Statement of Common Ground
2
Additional bundle of photographs, documents and letters
submitted by the appellants.
3
Information on a caravan storage site in Camberley, submitted by
the Council.
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nd
Plan 2 June,2008.
This is the plan referred to in my decision dated:
Clive Whitehouse
The Planning Inspectorate
4/09 Kite Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
0117 372 6372
e-mail: [email protected]
BA(Hons) MCD MRTPI, Inspector
Land adjoining The Bungalow, School Lane, Perry Hill,
Worplesdon.
Appeal: APP/Y3615/C/08/2065431 & 32
Scale:nts