Judge rejects challenge to validity of enforcement notice issued by district council

The High Court has upheld a planning inspector’s decision that an enforcement notice issued by Horsham District Council is valid.

This was served on the appellants over the removal of vegetation from their land and creation of an access to a nearby road, which is now a dead end serving an industrial estate.

Mr CMG Ockelton, vice president of the Upper Tribunal, noted in Jones & Anor v Secretary of State for Housing Communities and Local Government & Anor [2022] EWHC 520 (Admin) that the case was an appeal under s289 of the Town and Country Planning Act 1990 against the inspector’s dismissal of the couple’s appeals against the enforcement notice.

Horsham said it issued the notice because prior to the access being formed, the area was densely planted with mature shrubs forming part of the natural boundary treatment situated between the highway and the adjoining countryside.

It said the landowner removed some 10 metres of vegetation and created a crossover onto the highway surfaced with concrete and compacted material. A pair of chain-link gates were erected in the gap formed by the removal of the vegetation.

The inspector was satisfied on the balance of probabilities that the works undertaken were “of such an extent that it amounts to an operation normally undertaken by a person carrying on business as a builder.

“It therefore follows that the engineering operations are development for the purposes of Section 55 of the Town and Country Planning Act 1990, as amended, and based on the evidence before me are materially different from the said historic gateway, given the extent of works undertaken. It is therefore not a matter of repair and maintenance”.

The appellants argued that the road concerned had ceased to be classified.

Judge Ockelton said: “They face a number of difficulties. The first is that these arguments were not put to the inspector.”

He said the only relevant evidence before the inspector was that the road in question had in the past been an A road, and that the local authority regarded it as a classified road.

“There is no doubt that if it was at the time regarded as important to determine whether the classification still derived from the minister, that enquiry could have been made at the time of the appeal to the inspector,” he said.

"It was not made then and has not been made now. The only basis upon which it could be said that Old Guildford Road West is not a classified road for the present purposes would be by showing its declassification which, as I have said, has not been done.”

Judge Ockleton said the question of whether the road was classified was, “in law, answered in the affirmative by the council's evidence of the classification of the road”.

Even had these points succeeded the appeal “would be doomed to fail”  as the arguments put did not meet the requirement that access was required in connection with permitted development.

Lawful use of the field for agriculture was not in itself development, he ruled.

Judge Ockleton said: “An inspector does not have a duty to consider an alternative not put to him. If an alternative is not put to him but he perceives an obvious means of remedying the planning difficulties by lesser enforcement, he may consider it, but is not bound to do so.

“In the present case it is clear that the inspector saw no obvious alternative. Indeed, there was no obvious alternative. The removal of the hedging, described in the notice as an area ‘densely planted with mature shrubs forming part of the natural boundary' in order to construct the driveway had consequences for the amenity of the site.

“It is quite wrong to suggest that leaving the area wholly unplanted would ‘obviously’ deal with the planning difficulties.

“The truth of the matter is that the development was not permitted, and that the enforcement notice has never been shown to be other than appropriate to restore the previous position, including that feature of it which consisted of a former opening which was by then impassable.”

Mark Smulian