KB--2025-001314 - [2025] EWHC 2809 (KB)

Planning permission is required to carry out any development of the Land (section 55(1) and section 57 (1) of the Act). Rebuilding constitutes building operations and development for which planning permission is required (section 55(1A). Taking the Defendants arguments that these works were carried out to improve the unsafe, derelict barn, I note that improvement will also constitute development where it materially affects the external appearance of a building, pursuant to section 55(2)(a) of the Act.

Comparing the photographs, the barn is materially different in external appearance to the original barn in that the doors are visibly different, a light wood, and the window above the door is of a different size and shape. Further the green coloured corrugated sheeting and construction itself, described by Mr. Mileman as rebuilt to “an inappropriately high specification,” materially affects the external appearance of the barn.

The Defendants do not address the change of colour or the different doors but argue in the generality. They may have attempted to repair a derelict barn. However, they also had received advice that, in order to proceed without planning permission, the original building needed to be capable of conversion without the need for significant modification or building operations. Ms. Watson states that the barn was restored rather than rebuilt. However, she accepts that new material was used, and it was obviously used for the exterior, including sides and the roof, the doors and the window. I accept the evidence of Mr. Mileman that it was a breach of planning control.

In relation to the hardstanding, Ms. Watson argues that “the raised hardstanding had also long existed” and that the evidence demonstrates that it is of some “age”.

Section 171B of the Act provides that “Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of— (a) in the case of a breach of planning control in England, ten years beginning with the date on which the operations were substantially completed…”.

That ten-year rule applies from 25 April 2024 by virtue of the Levelling Up and Regeneration Act 2023; prior to that date the time limit for operational development was four years. The transitional arrangements provide, however, that where the operational development was substantially completed prior to 25 April 2024, it is the four-year period which applies (see regulation five of the Planning Act 2008 (Commencement No. 8) and Levelling-Up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024).

It seems that Ms. Watson considers the hardstanding to have existed prior to 25 April 2024 and so the four-year rule would apply.

The LPA accepts that some hardstanding was on the Land at the time of the pre-application request. The LPA’s case also relates to the area surfaced with tarmac planings, in front of and around the barn, separate from the access track. Also, the Claimant points to an additional part of the raised hard standing that did not exist on 22 September 2020. However, they accept that the additional section might have been added by the previous owners.

The Defendants could have made an application to the LPA for a certificate of lawful existing development and chose not to do so. Whilst the Defendants might consider that they improved the appearance of the barn and the Land and object to constraint on their use of the Land, planning control is in place to protect the environment for the benefit of all.

I find that the hardstanding, including the tarmac planings, to the extent that it was laid by the Defendants, was an operational development under section 55 of the Act and therefore in breach of planning control.

In deciding whether to grant the injunction, the “degree and flagrancy” of the breach of planning may be critical. Ms. Watson points to Mr. Mileman having described the breaches as "minor” in his email to the police. During the hearing, the Claimant stated that Mr. Mileman had meant that each individual breach was minor and that cumulatively they were not.

Whilst this interpretation may be difficult to reach from a plain reading of the email, it is not Mr. Mileman’s evidence - hence the initial action for a without notice injunction.

In any event, it is for the court to consider the combined works, together with other evidence, such as the payment for a water supply, noted by Southeast Water to be to supply a “new build”, rather than water for agricultural purposes, the letter box, the laying of a lawn/garden and the naming of the Land together with the limited explanation from the Defendants as to their plans.

They had submitted a request for pre-application advice for the erection of a dwelling house in the style of a log cabin. It was clear from the advice that an application for full planning permission was required. Indeed, the location of the Land is significant as it is inside the Special Area of Conservation, protected by a 7 km buffer zone. It also is within 400 metres of the Ashdown Forest Special Protection area. It is an “area of environmental sensitivity” (Ipswich).

However, in under two months, the Defendants started their development. There has been no explanation from the Defendants as to the reason for the hard standing, including both tarmac planings and extended raised hardstanding. I understand from Mr. O’Brien O’Reilly at the final hearing that Ms. Watson, at the hearing she attended, said that the barn was to be used for storage of tree surgery equipment and the Land was for use with their children- playing football. I have not been supplied with photographs of the inside of the barn. There is no mention in her letter or emails that the barn would be used for tree surgery tools. However, if it was being used for the storage of tree surgery equipment, I accept Mr. Mileman’s evidence that it would not be an agricultural use of the Land nor ancillary or incidental to the agricultural use of the Land. The LPA took a consistent approach with the previous owners of the Land when they were storing logs on the Land.

I have considered the lack of previous enforcement measures by the LPA. However, I find that the LPA was justified in applying for an injunction application to prevent anticipated residence. It was entitled to draw on its experience that these works were preparatory to residential occupation of the Land and to take note of corresponding concerns from other institutions. Whilst there has been no application for planning permission, ultimately, I must decide whether it is appropriate to grant the LPA final injunctive relief.

Whilst the Defendants might consider that they have improved the appearance of the Land, what uses should or should not be made of Land is a matter for the LPA and not for the courts. The planning judgment of the LPA takes into account social and economic needs of the community as well as environment preservation. I must consider the importance of the public interest in the enforcement of planning policy and planning decisions.

The LPA argue that there is harm in that the barn is a visible structure on the Land and is one that has been erected regardless of planning control, and in the knowledge that a planning application was required. The Defendants had access to a planning agent. Ms. Watson’s points to the pre-application consultation as evidence that she had tried to act lawfully and that the Defendants intentions in the future are not to occupy or develop the Land unlawfully. Ms. Watson sets out that she considers that they are being treated unfairly because of their background. Whilst she is not explicit, it appears that she is referring to Gypsy/Traveller background. This is a serious consideration. The Claimants rejected this categorisation, pointing instead to the actions of the Defendants, intention as expressed in the pre-application advice and lack of explanation for use of the hardstanding to rebut the LPA’s experience of its use for mobile homes/caravans.

Considering the evidence as a whole, including the actions of the Defendants shortly after the pre-application consultation, I am satisfied that the breach is deliberate and flagrant. It was in the face of the advice and information to apply for planning permission.

The Claimant argues that the harm of allowing the unauthorised developments to remain on the Land make the Land vulnerable to instant residence by caravans/mobile homes, whilst also reducing the area that can be used for agricultural purposes. There is a public interest in enforcing planning control. In consideration of the planning harm caused, and its nature and extent, I take account of the Defendants position that they are being unfairly treated. However, there has not been a planning application from the Defendants for the retention of the barn and/or the hardstanding. The works do give the Land the look of the laying of a residential premises rather than pursuing an agricultural purpose. The barn is clearly visible and Mr. Mileman’s evidence is that it is out of keeping with the landscape and is ready to convert into harmful residential use. This damage of the appearance is heightened as it is in a protected landscape.

I take into account the evidence that any application for the use of the Land for a Gypsy/Traveller encampment/caravans is unlikely to succeed due to the location of the Land in an important conservation area. A single residence also would not receive planning support, as was clearly communicated to the Defendants. On a broad view, I find that there is planning harm.

I weigh up the distress expressed by Ms. Watson and damage to her mental health, that her enjoyment of the Land is being taken away from her by the LPA. She argues that this issue could have been sorted out without the need for an injunction, pointing to the start of the issue being that they did not receive the correspondence. I must weigh up whether the LPA is being over-restrictive as to what she can do on her Land against the “public interest in securing the enforcement of planning policy and planning decisions against the private interests of the individuals who are allegedly in breach of planning control” (paragraph 73 of South Bucks). The Claimant’s position, as expressed at the final hearing, was that it is up to the Defendants to approach it with any further proposals. It also indicated that it would express in any Order that the Defendants can enjoy the Land and use it recreationally where it is not a breach of planning control. I see that this is reflected in the Draft Order.

The injunction does not prevent any lawful activity on the Land which is not a breach of planning control. On the other hand, I am satisfied that an injunction is necessary to prevent further development for non-agricultural related purposes. In addition, the LPA has considered a lesser remedy, and its evidence is that an enforcement notice would not operate to remove existing works nor prevent residential occupation which, I accept from Mr. Mileman, could occur very rapidly, particularly over a Bank Holiday weekend. Rather, at its highest, an enforcement notice would result in a fine.

I also take into account Ms. Watson’s representations in writing that she had no intention in carrying out works to convert the Land into a place of residence. However, it is undisputed that their original desire had been to develop a residence. The works are works that may be needed for a residence. Further, there was a drinking water supply paid for (and then cancelled), a letter box and a naming of the Land.

I consider that the Defendants’ rights further to Article 8 (2) ECHR are engaged and there is interference with their private and family life. However, the interference is minimal. Any stress over legal proceedings and the feeling of being scrutinised should dissipate once the proceedings are completed. Ms. Watson considers that the LPA’s restrictions are extreme and will stop her from enjoying her land. However, she also expresses that “any future development or change of use will only be carried out through the appropriate planning application processes and in full cooperation with the council”. It does appear that since these proceedings commenced the LPA has ceased dialogue with the Defendants, save for transactional emails in relation to court directions. I would encourage dialogue to recommence, although the Claimant’s position is that the Defendants should approach them over their future plans.

It always is concerning to read of distress and anxiety caused to a person. However, I consider that the stress felt by Ms. Watson is outweighed by the public interest in enforcing planning control.

Ms. Watson has communicated that she is “afraid that any normal use of the land may be misinterpreted or criticised. This has greatly affected my mental health and left me feeling excluded from a place I legally own and care for.” It is not for the court to enter into the practicalities, but it might be that Ms. Watson consults again the planning agent and makes an application if she is concerned about future developments. It might be that a dialogue now can ensue with Mr. Mileman, who is seized of the detail about the Land and its history.

In relation to proprietary and commercial interests, the Claimant accept that there will be some interference with the Defendants’ Article 1 Protocol 1 rights but argues that this is justifiable, pointing to the breaches that already have occurred and the harm that would flow from anticipated breaches. I do not consider the terms of injunction sought, to return the Land to more or less the state before the unauthorised development to be unjustifiable, particularly as the Land is 400 metres from Ashdown Forest Special Protection Area.

Overall, the prejudice to the Defendants is minimal as the sought injunction will require the Defendants to comply with planning control and to remove the development that they have carried out without planning permission. I note that this objective appears to chime with Ms. Watson’s declared intention. There is no restriction on the lawful use of the Land.

An injunction is necessary to prevent further harm from occurring and to address the harm which has occurred. An injunction would, therefore, uphold the integrity of the planning system. I am satisfied that the evidence demonstrates that the breaches of planning control will continue unless and until effectively restrained by the court and that nothing short of an injunction will provide effective restraint.

For these reasons, I will grant a final injunction, with both prohibitory and mandatory elements.

However, whilst the LPA application is for the restraining part of the injunction to be for 10 years, reduced from indefinite after I addressed the LPA on the issue during the final hearing, I consider that it is not proportionate in time. I weigh up the representations of Ms. Watson, that she wishes to enjoy the Land lawfully, with the public interest. I also consider that the removal of the hardstanding laid by the Defendants and the demolition of the barn will reduce the site back to not being ready for residential use. I therefore make the final injunction Order’s restraining part to be for a period of two years.

In relation to the mandatory part of the Order, the draft Order suggests that the Defendants have three months to comply. This timeline weighs in favour of the proportionality of the Order as the time allowed for compliance will minimise any hardship that might be caused to the Defendants.

I have heard representations on costs, including further representations on the costs schedule and the necessity for a grade A lawyer. I have considered the email from Ms. Watson where she states that the financial burden of costs would be extremely difficult. The general rule is that the “unsuccessful party” will be ordered to pay the costs of the “successful party” (CPR r.44.2(2)(a)). Financial hardship is not a reason not to award costs. However, in light of the number of hearings in this case, and the final hearing lasting slightly over one day and attempts by Ms. Watson to engage with the LPA, I consider it appropriate for costs to be assessed. I therefore do not summarily assess them in the sum requested by the Claimant.