Davis v Secretary of State for Communities and Local Government & Anor

Structures mounted on skids are not outside planning control merely because they can be moved. The relevant question is whether, having regard to the structure, its position and the owner’s intentions, it is genuinely temporary or is, in substance, a permanent building. A replacement structure is “additional” for the purposes of a planning condition if it was not already on the site, even if an earlier structure has been removed. Under the National Planning Policy Framework, development in the Green Belt is prima facie inappropriate unless it falls within an identified exception. There is no general rule that development is appropriate merely because it preserves openness. An inspector is not generally required to devise and determine an alternative partial scheme where no specific split scheme has been advanced.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, an inspector’s decision upholding an enforcement notice concerning stables, field shelters and hardstandings at land in the Green Belt. The inspector had excluded two pre-existing field shelters from the notice but treated a replacement shelter and a group of stables and storage structures as development requiring permission. He dismissed the deemed application for planning permission on ground (a), finding inappropriate development, visual harm and no very special circumstances.

The appeal alleged errors concerning the replacement shelter, the need for the structures, consistency with other sites, the failure to make a split decision, and the test applied to the hardstandings.

1. Field Shelter C. The inspector’s decision letter, read fairly and as a whole, treated Field Shelter C as part of the main group. The reasoning concerning size, permanence, construction, attachment to the ground, intended use and ability to move applied to all four structures. The inspector was entitled to distinguish the new replacement shelter from the pre-existing shelters and to find it a permanent building. His reasons were sufficient and the conclusion was a matter of planning judgment.
2. Condition 6 applied to additional temporary structures and field shelters. “Additional” meant a structure not already on the site. Removing an earlier structure did not prevent a replacement from being additional. This construction was consistent with the condition’s purpose of controlling intensification and its planning impact.
3. The pre-application correspondence did not support permission for the permanent structures. It had indicated that stabling and storage structures would be acceptable only if truly mobile. The deemed application therefore concerned development that the Council had said would not be acceptable.
4. The inspector was entitled to find that the permitted manege and grazing use did not require the extensive additional facilities sought. The owner had to adapt the use to the capacity and permitted use of the land. The weight given to the asserted need was a matter of planning judgment.
5. Generalised references to other equestrian sites did not require a detailed consistency analysis. The inspector had addressed the material generally and was not required to construct a detailed case based on alleged comparators. The failure to make a split decision was not irrational where no specific alternative scheme or selection of structures had been proposed.
6. Development in the Green Belt is prima facie inappropriate unless within the exceptions identified in paragraphs 89 or 90 of the National Planning Policy Framework. There is no general openness-based exception. The inspector was therefore entitled to apply the very special circumstances test to the hardstandings. The appeal was dismissed.

The judgment does not state any prior appellate decision in this litigation. Permission to appeal to the High Court under section 289(6) of the Town and Country Planning Act 1990 was granted on 28 October 2015.