CASE OF BRYAN v. THE UNITED KINGDOM
No violation of Art. 6-1
John Freeland
7. The applicant, Mr John Bryan, is a farmer and a contractor. He was born in 1931 and resides in Warrington, Cheshire. 8. On 4 December 1989 an enforcement notice was issued and served on Mr Bryan by the Vale Royal Borough Council requiring the demolition of two brick buildings on land which the applicant had bought in 1987. The enforcement notice recited that there appeared to the Council to be a breach of planning control in that the two brick buildings had been erected without the necessary planning permission. The notice required the applicant to demolish the buildings and remove the building materials within three months. In doing so, the authorities acted in accordance with section 172 of the Town and Country Planning Act 1990, which consolidated earlier legislation ("TCPA" - see paragraph 18 below). 9. The applicant appealed to the Secretary of State for the Environment under section 174 (2) (a), (b), (g) and (h) TCPA (see paragraph 19 below). 10. In accordance with the relevant legislation (see paragraph 20 below), an inspector was appointed to conduct an inquiry and determine the appeal. He was a Principal Housing and Planning Inspector, a civil servant and a member of the salaried staff of the Department of the Environment. He had been appointed by the Secretary of State after approval of the Lord Chancellor. In his decision letter of 1 October 1990 the inspector rejected the appeal under grounds (a), (b), and (g) but allowed it under ground (h) to the extent that the compliance period should be extended from three to six months. He held, inter alia, as follows: "The appeal on ground (b) ... (12) What I need to decide in respect of this ground of appeal is whether, as a matter of fact and degree, the buildings could, from their appearance and layout, be considered to have been designed for the purposes of agriculture. I conclude, from examination of photographs taken during construction and from noting the alterations made since, that the Council were right to be concerned that the appeal buildings had the appearance of large detached houses. The size, layout, and original external appearance of the buildings and their detailing did little to change that view. (13) In my opinion, as originally constructed, the buildings would have led any reasonable person to have concluded that he or she was looking at the start of a small new detached housing estate. Indeed, that appeared to be the widely held view of many local people, supported by the local Member of Parliament, who were concerned to see what was being built on the edge of the village. The more recent construction of an, as yet, uncompleted but similar building close to the two appeal buildings serves to compound the effect. (14) But it is the original appearance of the two appeal buildings and particularly the first assessment of the Ministry of Agriculture, Fisheries and Food which convinces me that the buildings were not requisite or reasonably necessary for the purposes of agriculture. Numerous features of the buildings were more suited to houses than barns. The original openings in building No. 1 were said to be doorways for a veal calf unit. But this building did not incorporate internal drainage considered necessary for such stock. The doorways appeared to have been more likely to have been useful as window openings, none reached ground level as built; one was almost waist high above outside ground level measured from the lower edge of the unbonded brickwork added later. Other features in both buildings include the extensive use of Georgian-style windows and other windows made for domestic use. I understand that Mr Bryan’s contacts allowed him to buy these windows cheaply. But whatever their source, they contribute to an impression that the buildings look more like houses than barns. There are other features which add to that view. The use of domestic-style eaves and gable barge boarding. The residential look of the ‘porch’ to No. 1 building. And the [Ministry of Agriculture, Fisheries and Food’s] view about the uneconomic layout of both buildings as originally built all add to the impression that these buildings were not designed for agricultural purposes, albeit they have since been modified and adapted for such a use. (15) You said that the buildings looked like many local old barns. But it is my view that, as originally built, the appeal buildings would have looked much more like houses. They did not look as if they had been designed for the purposes of agriculture. My opinion is not altered by my finding them now being used for storing hay. The appeal on ground (b) fails. The appeal on ground (a) (16) The appeal buildings lie in part of the green belt ... They also lie within the Higher Whitley Conservation Area but outside the village policy area for Higher Whitley shown on the draft Vale Royal Borough Local Plan. In my opinion, the decision turns on the following main issues. Whether, if the development is inappropriate to the green belt, there are any special circumstances to justify the granting of planning permission; secondly, whether the appeal buildings enhance or preserve the character or appearance of the conservation area. I shall also consider the effect of the development on the countryside surrounding the village. (17) ... (18) The appeal buildings have neither enhanced nor preserved the appearance of this part of the conservation area, rather the reverse. Much of the pleasant nature of the area is derived from the grouping of the older housing around the centre and from its rural and agricultural setting. The two appeal buildings look like part of a small estate of detached houses with access roads and suitable garden areas. The third building, not subject of this appeal, exacerbates this impression. (19) These objections amount to sound and clear-cut reasons why planning permission should be withheld. The fact that other buildings or buildings of a broadly similar nature, if considered to be designed for agricultural purposes, could be built under the provisions of the Town and Country Planning General Development Order 1988, does not affect my decision. The appeal on ground (a) fails. The appeal on ground (g) (20) You said that demolition of the buildings and the removal of the materials was an excessive requirement. I do not agree. Harm to the purpose of the green belt has been caused. The appearance and character of the conservation area has not been either enhanced or preserved. Encroachment on the countryside has occurred. Making the buildings look more like those which might have been permitted development as you suggested could mitigate a little of the harm I have identified. But this is not just a matter of cosmetics. The main objections would remain. In my opinion, the proper and necessary course of action is that required by the notice. That includes removal of materials. Such a requirement would not preclude their re-use on site for any possible future permitted development. The appeal on ground (g) fails. The appeal on ground (h) (21) ... Mr Bryan wanted more time in order to erect a replacement or replacements before demolition. I see no need to insist on a period which would make undue difficulty for him. I will increase the period to 6 months ... (22) I have taken account of all the other matters raised, including the possibility of your client putting up a large steel-clad building under permitted development rights, but find they do not affect my decision." 11. The applicant appealed against this decision under section 289 TCPA (see paragraph 24 below). In his Notice of Motion, the applicant first alleged that the inspector had "erred in law in applying the wrong test in deciding whether the buildings were permitted development under the provisions of the ... General Development Order" and "in considering that the said buildings were not requisite or reasonably necessary for the purposes of agriculture when there was no evidence upon which any reasonable inspector could so find". The subsequent grounds of appeal dealt expressly with grounds (a) and (g) of the appeal to the Secretary of State (see paragraph 9 above). 12. The appeal was dismissed by the High Court on 8 March 1991, the judge, Mr Lionel Read, QC, finding inter alia as follows: "A principal argument on behalf of the applicant at the inquiry under [ground] (b) was that the erection of the two buildings was permitted development under the General Development Order ... ... The applicant does not challenge the inspector’s decision under ground (b). Nevertheless paragraphs 14 and 15 of the decision letter, where he is still dealing with that ground, are relevant to the court’s consideration of his decision on grounds (a) and (g) ... ... In my judgment ... it cannot be said that the inspector failed to take into account the fact that the applicant might, within his General Development Order rights, erect buildings of a broadly similar nature. He addressed that very consideration in terms at paragraph 19 of his decision letter. Because the applicant had those rights and wanted more time to erect a replacement or replacements, the inspector extended the applicant’s time for complying with the enforcement notice under ground (h). Whether the existence of these General Development Order rights provided sufficient reason for the inspector to grant planning permission for the buildings in fact erected, whether or not conditioned as suggested by the applicant, was a matter for judgment - the inspector’s judgment. Whether another decision-maker would have reached the same conclusion as did this inspector is not to the point. Nor is the view of this court, which does not sit on appeal from the judgment of inspectors, relevant. I am unable to say that there was anything irrational in the inspector’s decision. In particular, the question whether the alterations proposed to a building were, as he evidently thought, a ‘matter of cosmetics’ and would not meet the main objections was entirely a matter of planning judgment for him. It is to be remembered that, in order to stay within his General Development Order rights, the applicant must erect replacement buildings which, by their appearance and layout, could be considered as designed for the purposes of agriculture. If they are, their effect on the green belt, the countryside and the conservation area is irrelevant to the exercise of that right. That does not, however, in my judgment mean that the inspector acted irrationally in concluding that the buildings in fact erected without permission under the General Development Order were objectionable and should be demolished. In the result, I find no error of law and I dismiss the application." 13. At the hearing held before the European Commission of Human Rights on 14 October 1993, the applicant’s representatives stated that, although they had not represented the applicant before the High Court, they surmised that the challenge to the inspector’s ground (b) reasoning had been raised in the Notice of Motion and then abandoned at the hearing because of the limited jurisdiction of the High Court. In confirmation of this, the applicant furnished the Court with a statement by the barrister who had represented him in the High Court. 14. Leave to appeal to the Court of Appeal was refused. The Court of Appeal, on 11 June 1991, also refused leave to appeal. 15. Under section 57 TCPA, planning permission is required for the carrying out of any development on land. Section 58 TCPA allows for planning permission to be granted by a development order. 16. The Town and Country Planning General Development Order 1988 SI no. 1813 ("TCPGDO") sets out classes of development for which permission is automatically granted. According to Article 3 TCPGDO, and Class A of Part 6 of Schedule 2 to the TCPGDO, planning permission is deemed granted for the following developments: "A. The carrying out on agricultural land comprised of an agricultural unit of - (a) works for the erection, extension or alteration of a building, or (b) any excavation or engineering operations, reasonably necessary for the purposes of agriculture within that unit." 17. Accordingly, buildings, structures or works not designed for the purposes of agriculture require planning permission (paragraph A.1 (c) of Class A of Part 6 of Schedule 2 to the TCPGDO). 18. Where it appears to the local planning authority that there has been a breach of planning control and the authority consider that it is expedient to do so, they may issue an enforcement notice requiring the breach to be remedied (section 172 TCPA). 19. Section 174 (2) TCPA provides that an appeal against an enforcement notice may be made to the Secretary of State on any of the following grounds: "(a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged; (b) that the matters alleged in the notice do not constitute a breach of planning control; ... (g) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control or to achieve a purpose specified in section 173 (4); (h) that the period specified in the notice as the period within which any step is to be taken falls short of what should reasonably be allowed." 20. Section 175 (3) TCPA provides that if an appellant or the local authority desires, the Secretary of State shall give each of them the opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose. Where such a person has determined an appeal, his decision shall be treated as that of the Secretary of State. Pursuant to the applicable regulations, appeals against enforcement notices are heard and determined by an inspector. 21. According to the Planning Inspectorate Executive Agency Framework Document (1992), "staff of the Inspectorate act on behalf of the [Secretary] of State for the Environment ... This work includes that of inspectors who, exercising their own independent judgment, decide cases or make recommendations to the ... Secretary of State ..." (paragraph 2.2). The process of decision-making on appeals has a "quasi-judicial character" (paragraph 2.4). The Inspectorate, which "upholds the principles of openness, fairness and impartiality" (paragraph 2.6), is "subject to the scrutiny of the Courts, the Parliamentary Commission for Administration and the Council on Tribunals ..." (paragraph 2.6). Among the objectives of the Inspectorate is that of maintaining "the integrity of each inspector as an independent tribunal, not subject to any improper influence" (paragraph 2.7 (ii)). Annex B to the Framework Document adds: "Each inspector must exercise independent judgment and must not be subject to any improper influence, nor must it appear that the inspector may be subject to any such influence." The basic principles set out in this document had long been applied in practice. 22. In determining planning appeals, inspectors are required to have regard, inter alia, to the policies promulgated by the Secretary of State on matters of planning as a "material consideration" (section 70 TCPA) and to comply with the various procedural rules for the conduct of enforcement appeals (the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1981, and the Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1981). Like any other person exercising statutory powers, the inspector must also act in a procedurally fair manner. 23. Decisions by inspectors are not seen by the Department of the Environment in draft before they are promulgated. However, up until the time when the decision letter is issued, the Secretary of State may revoke the power of an inspector to decide an appeal (Schedule 6 to the TCPA). 24. Section 289 TCPA provides for appeals against a decision of the Secretary of State under section 174. An appeal may be made to the High Court on a point of law, or the Secretary of State may be required to state a case for the opinion of the High Court (section 289 (1) TCPA). 25. It is common ground that an appeal "on a point of law" may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, pp. 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority (see paragraph 12 above). 26. As an appeal to the High Court under section 289 (1) is on a point of law, the High Court has no power to receive further evidence on primary facts (Green v. Minister of Housing and Local Government [1963] 1 All England Law Reports 578, p. 616). Halsbury’s Statutes of England and Wales, 4th edition, vol. 46 (1990 reissue) describes many of the cases on the question of whether a point is one of fact or of law as "irreconcilable" (p. 836). Halsbury’s Laws of England states that "if there is no evidence for a particular finding or if the tribunal does not take into account at all a relevant consideration, there could well be grounds of appeal raising a question of law. The contention that a tribunal has failed to give adequate weight to evidence or sufficient consideration to a particular circumstance does not afford such grounds; and the weight which a tribunal gives to a particular piece of evidence or a particular consideration is a matter for that tribunal" (Halsbury’s Laws of England, 4th edition, vol. 46 (1992 reissue), p. 698).