Forest of Dean District Council v Wildin, Court of Appeal - Queen's Bench Division, October 26, 2018, [2018] EWHC 2811 (QB)

Resolution Date:October 26, 2018
Issuing Organization:Queen's Bench Division
Actores:Forest of Dean District Council v Wildin
 
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Neutral Citation Number: [2018] EWHC 2811 (QB)

Case No: E90CF030

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Cardiff Civil and Family Justice Centre

2 Park Street, Cardiff CF10 1ET

Date: 26/10/2018

Before :

HIS HONOUR JUDGE JARMAN QC

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Between :

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Mr Stephen Whale instructed by the claimant

The defendant appeared in person

Hearing date: 20 September 2018

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HH JUDGE JARMAN QC :

  1. The claimant as local planning authority (the Council) applies to the court for an injunction pursuant to section 187B of the Town and Country Planning Act 1990 requiring the defendant Mr Wildin to comply with an enforcement notice dated 3 March 2014 which it issued against him, as varied by an inspector on appeal in a decision (the Decision) dated 19 February 2015.

  2. The notice relates to land at 24 and 24A Meendhurst Road, Cinderford, Gloucestershire. The breach of planning control alleged in the notice was as follows:

    ``Without planning permission, the removal of topsoil and subsoil from the land, the creation of new land form and the reprofiling of the land so as to alter the natural ground level.

    Without planning permission, operational development in the form of the construction of walls and the installation of drainage in connection with the proposed erection of a building on the area of land which has been excavated.''

  3. The reasons given for issuing the notice were that the excavation creates a risk of instability to the land and the surrounding land in an area of historic mining, that the construction of walls and/or the proposed building is harmful to the residential amenity of the surrounding in terms of the overbearing impact of the physical structure.

  4. The notice required Mr Wildin to remove from the land all structures, walls and materials placed on the land in connection with the breach and to reinstate the land to its original levels within three months.

  5. He did not comply with that notice, which was served at a time when the building work was nearing completion. Indeed, his contractors carried on to complete the building and to fit it out as a sports and leisure facility. He says that he was already contractually committed to doing so. Moreover, he believed, and indeed still believes, that the building constitutes permitted development within the Town and Country Planning (General Permitted Development) Order (GPDO), Schedule 2, Part 1, Class E.

  6. His appeal against the notice was primarily on that ground. Development comes within Class E if it amounts to ``The provision within the curtilage of the dwellinghouse of (a) any building...required for a purpose incidental to the enjoyment of the dwellinghouse as such...''

  7. However, the following subsections go on to provide that development is not permitted by Class E if it comes within any of the exceptions set out, which so far as material include where (c) the building would have more than one storey, or (d) the height of the building would exceed 3 metres.

  8. The Council took the view, and maintains, that the building is not incidental to the dwellinghouse at 24 Meendhurst Road, that it spans that curtilage and that of next door 24A Meendhurst, that it is a two storey building, and that its height exceeds 3 metres.

  9. The inspector considered that the building clearly has more than one storey and accordingly does not come within Class E. At paragraph 7-9 of the Decision, he said:

    ``The proposed building clearly has more than one storey. It has what is identified on the plans as an elevated area, including a viewing lounge, table games area, viewing room and children's play area at the upper floor level, and portable soft play area, gym, entrance toilets and bowling alley at the lower level, with the soft play, sports hall and squash court and some of the lobby spanning the lower and elevated level. There are stairs between the different floor levels.

    The appellants suggest that the position where there is the elevated level does not show externally but is a basement; it is argued because the building is set in the ground, the elevated level is not apparent externally. However, a significant part of the building at the south, which is more than one storey, is not in the ground, but has its full elevation exposed and is readily apparent from outside. The south elevation has an entrance, which is seen as a small door in a tall wall, with the toilet, lobby, spiral stair and child's play areas behind it.

    The appellants have identified many buildings that are single storey, which are very tall, much more so than the appeal building. However, the question for section (c) is not how tall the building is, but whether it has more than one storey. In this case it has two storeys. I accept that there are parts of the building such as the sports hall and squash court that are single storey, but a significant proportion of the building is two storeys.''

  10. The inspector accordingly determined that the building was a two-storey building and thus not permitted development within the GPDO. He did not go on to deal with the Council's other arguments as to why the building does not come within Class E.

  11. The inspector then went on to consider whether planning permission should be granted on the deemed planning application to which the appeal gave rise. He identified the two issues under this head as the effect on the character and appearance of the surrounding area, and the effect on the living conditions of neighbouring occupiers with particular reference to outlook, amenity space, shading and daylight.

  12. He described the character of the area in paragraph 13 as follows:

    ``The area generally consists of a mix of housing types, designs and sizes, but generally one and two storey detached dwellings. There are no specific landscape or heritage designations. The dwellings are generally facing the roads, resulting in a large space behind that generally forms the rear gardens to the various properties. There is a natural slope across the site down from Church Road, providing a pleasant and natural transition between houses, down the slope of the hill. There are also a significant number of relatively small ancillary type buildings in this area, but the open character remains, and in my view, this together with the domestic scale of buildings is an important characteristic of the environment.''

  13. The inspector than observed...

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