Dennis, R (on the application of) v Sevenoaks District Council

In planning law, a proposed structure must be assessed by reference to the totality of the operations forming the project. A decision-maker must first determine whether the works constitute one scheme or separate operations. That is a question of fact and degree, but it must be decided on relevant considerations and without material factual misunderstandings. A wall which both retains material and encloses something does not automatically qualify as a permitted means of enclosure. Its purpose, location, design and construction must be considered. Where its primary function is to form part of a structure, it may instead be a building subject to prior-notification requirements.

The claimants sought judicial review of Sevenoaks District Council’s decision that works for a silage clamp were permitted development and did not require the prior-notification procedure under the Town and Country Planning (General Permitted Development) Order 1995. The proposed works involved an existing concrete base and sleeper walls intended to retain silage.

The Council treated the base, walls and storage use as separate matters. The claimants argued that the works formed one building operation and that the walls were part of a building rather than a permitted means of enclosure. The central issues were whether the proposal had to be assessed holistically and whether the Council had lawfully classified the walls.

1. The application was allowed. The Council’s decision was quashed. The Council was ordered to pay the claimants’ costs, summarily assessed at £15,000 plus VAT. Permission to appeal was refused.
2. The court applied the holistic approach in Sage v Secretary of State for the Environment, Transport and the Regions, [2003] UKHL 22; [2003] 1 WLR 983. Whether works are one scheme or separate schemes remains a question of fact and degree. The decision-maker must consider all relevant circumstances.
3. The Council had failed to consider the totality of the operations originally contemplated. The applications and subsequent works showed that the concrete base formed part of the intended silage pit. The Council also proceeded on the materially inaccurate belief that the relevant base was simply the pre-existing floor of a demolished barn. Those errors infected the decision.
4. The court indicated that the walls could not be classified mechanically as a means of enclosure merely because they had some enclosing function. Prengate Properties Ltd v Secretary of State for the Environment, [1973] 25 P&CR 311, recognised that a wall may have a hybrid enclosing and retaining function, but did not establish that every such wall falls within Class A in Part 2.
5. The nature, location, design and intended function of the proposed walls were relevant. Their substantial sleeper-and-steel-channel construction was apt to retain the heavy weight of silage. It was therefore open to the Council to conclude that they formed part of a building, but the Council had not properly undertaken that fact-sensitive assessment.

This was a first-instance judicial review in the Administrative Court. The Council’s decision was quashed, and permission to appeal was refused.