KENNETH VICTOR PRICHARD JONES v SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT

For permitted development under Class B of Part 2 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, the access must be to a highway which is not classified and must be required in connection with development permitted by another class in the Schedule. A lawful use is not itself development for this purpose.

Whether a road is classified is determined by the statutory definition in section 12 of the Highways Act 1980. Its physical characteristics, numbering, apparent function or status as a through road do not impose additional requirements. Departmental guidance cannot alter the statutory scheme. An inspector is not obliged to consider an alternative enforcement measure which was not put to him.

The appellants appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of their appeals against an enforcement notice. The notice concerned the removal of boundary planting and the construction of a hard-surfaced vehicular access and concrete apron onto Old Guildford Road West.

The inspector rejected appeals on grounds (c) and (d), finding that the works were development requiring planning permission and were not permitted development under Class B of Part 2 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The appellants challenged the classification of the road, relied on departmental guidance and an earlier inspector’s decision, and argued that the enforcement notice should preserve an alleged historic gateway.

1. Appeal dismissed. The inspector had adequately addressed whether the works were permitted development. His reasons satisfied the standard in South Bucks District Council v Porter (No.2) [2004] UKHL 33. The inspector’s decision was sufficiently clear and disclosed no error of law (para [12]).
2. The meaning of “classified road” is governed by article 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 and section 12 of the Highways Act 1980. There is no separate rule that only A or B roads qualify, or that a further reclassification process is needed for a classified road to remain classified. Numbering, blockage, apparent function and whether the road is a through road are not additional statutory requirements. The inspector was entitled to rely on the highways evidence and the appellants had not shown declassification (paras [14]-[21]).
3. The earlier inspector’s decision was not a source of law. The inspector was not required to follow it or take it into account for that purpose. The earlier decision also contained an erroneous inference from the practical inclusion of A and B roads in the category of classified roads (paras [14], [19]-[21]).
4. Class B required the access to be required in connection with development permitted by another class in Schedule 2, excluding Class A of Part 2. The lawful agricultural use of the field was not development. The works therefore failed the Class B condition independently of the road-classification issue (paras [23]-[24], [26]). Departmental guidance was incapable of overriding the statute or statutory instrument and did not establish that the road had ceased to be classified (para [25]).
5. The inspector had considered the evidence about an earlier gateway. There was no evidence of a usable opening immediately before the unauthorised works, and the former opening was impassable. Since no ground (f) appeal or specific alternative enforcement measure had been put to the inspector, he had no duty to devise one. Under Tapecrown Ltd v First Secretary of State [2007] 2 P&CR 7 and Najafi v Secretary of State for Communities and Local Government [2015] EWHC 4094 (Admin), an unrequested alternative may be considered if obvious, but need not be considered; none was obvious here (paras [27]-[30]).

• Planning Inspector: Appeals against the enforcement notice were dismissed on grounds (c) and (d) on 15 March 2021.
• High Court (Planning Court): The appeal under section 289 of the Town and Country Planning Act 1990 was dismissed.