Binabik Holding Ltd v Secretary of State for Communities and Local Government

On an enforcement appeal, the primary question is whether permission should be granted for the development constituting the breach, including retention of the existing building. Where a partly constructed building was not constructed for agricultural purposes, a later proposal to adapt and complete it for agriculture does not require the development to be assessed as a new agricultural building. The planning authority may consider the building as it exists, together with the proposed alterations and completion, when applying Green Belt policy. The possibility of future agricultural use is a material consideration, but it carries limited weight where the existing development causes substantial Green Belt and visual harm. The court upheld the inspector’s conclusion that the harm was not clearly outweighed by other considerations.

An inspector dismissed two appeals concerning a large partly constructed building at Honeywood Farm in the Metropolitan Green Belt. One appeal challenged an enforcement notice requiring cessation of construction and demolition. The other challenged refusal of planning permission for retention, alteration and completion of the building as an agricultural building.

The claimant argued that the inspector should have assessed the proposed completed development as a new agricultural building, rather than asking whether the building had originally been constructed for agricultural purposes. It also challenged the inspector’s consideration of agricultural-building case law and his assessment of visual harm. The claimant sought permission to appeal under section 289 of the Town and Country Planning Act 1990 and an order under section 288 quashing the planning appeal decision.

1. Enforcement appeal. The inspector correctly treated permission as being sought primarily for retention of the existing building. Under ground (a), the relevant question was whether that building was an agricultural building. The inspector was entitled to conclude, as a matter of fact and degree, that it had not been constructed for agricultural purposes. Permission to appeal under section 289 of the Town and Country Planning Act 1990 was refused.
2. Planning appeal. The application was not, in substance, an application for a new building. It sought retention of the partly constructed building under section 73A of the Town and Country Planning Act 1990, together with permission for alteration and completion. The inspector therefore correctly assessed the building as constructed and took the proposed adaptation into account.
3. The claimant’s proposed calf-rearing use did not compel a different approach. A change of intention during construction did not convert an existing non-agricultural building into appropriate Green Belt development. The inspector was entitled to regard the possibility that the building could be adapted for agriculture as carrying little weight, particularly because many buildings could be so adapted.
4. The inspector properly considered the building’s bulk, form, height and siting, and was entitled to find significant harm to the openness and purposes of the Green Belt and to the character and appearance of the area. The proposed alterations did not materially affect those features. His alternative conclusion that substantial visual harm would remain was also lawful.
5. The remaining grounds disclosed no material error. Reliance on cases concerning agricultural buildings caused no prejudice, since the claimant did not contend that the inspector’s factual conclusion was wrong. The application under section 288 was refused. Costs were awarded to the Secretary of State in the sum of £7,978. Time for any application to the Court of Appeal was extended to 21 days from receipt of the transcript.

Inspector: On 22 April 2009, the inspector dismissed the enforcement appeal on ground (a), the appeal on ground (g), and the appeal against refusal of planning permission.

High Court (Administrative Court): The court refused permission to appeal under section 289 of the Town and Country Planning Act 1990 and refused the application under section 288 to quash the planning decision.