Appeal Decisions Inquiry opened on 25 January 2011 Site visit made on 8 June 2011 by Diane Lewis BA(Hons) MCD MA LLM MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 2 August 2011 Appeal 1 Ref: APP/B1740/C/10/2131327 Land at Four Oaks, Ibsley Drove, Ibsley, Ringwood, Hampshire BH24 3NP • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Christopher Cooper against an enforcement notice issued by New Forest District Council. • The Council's reference is EN/07/0429 • The notice was issued on 25 May 2010. • The breach of planning control as alleged in the notice is without planning permission, development consisting of: i. The change of use of the Land from agricultural to a mixed use of residential and storage; ii. The siting of a mobile home, in the approximate position marked A on the attached plan; iii. The erection of a building in the approximate position marked B on the attached plan; iv. The erection of a trampoline in the approximate position marked C on the attached plan; v. The use of the building marked D on the attached plan for residential purposes; vi. The use of building marked E on the attached plan for the storage of personal items, building materials, equipment and tools. vii. The formation of a hard standing in the approximate position marked in black hatching on the attached plan; viii. The formation of a storage area in the approximate position marked in blue shading on the attached plan. • The requirements of the notice are: i. The use and occupation of the Land for residential purposes and storage shall only be permitted for a person or persons with bone fide gypsy or traveller status as defined in section 15 of Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites. At such time as the Land is no longer being used in accordance with this permitted use, the mobile home and all development associated with that use shall be removed and the Land must revert back to its previous authorised use as agricultural land. ii. Only the 2 buildings shown marked as A and D on the attached plan are to be occupied for residential purposes. Other buildings on the Land shall be used only for ancillary purposes, including storage. iii. The Land shall be used and occupied as a single unit at all times by only one family group. It shall not be sub-divided or let in any way. iv. No further development (including the erection of new buildings and the extension and development of existing buildings) shall be undertake without formal planning permission first being granted. v. The parking and turning area currently provided on the Land shall be retained at all times. vi. There shall be no increase in the area used for outside storage of goods or materials beyond the area shown marked in blue shading on the attached plan. vii. There shall be no extension to hard surface beyond that shown marked in black hatching on the attached plan. viii. The current landscaping on the Land shall be retained at all times. • The period for compliance with the requirements is within 1 month of the notice taking effect. • The appeal is proceeding on the grounds set out in section 174(2)(d) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have http://www.planning-inspectorate.gov.uk Appeal Decisions APP/B1740/C/10/2131327, APP/B1740/X/11/2144123 been made under section 177(5) of the Act as amended does not fall to be considered. Summary of Decision: The appeal is dismissed and the enforcement notice as corrected is upheld. Appeal 2 Ref: APP/B1740/X/11/2144123 Land at Four Oaks, Ibsley Drove, Ibsley, Ringwood, Hampshire BH24 3NP • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC). • The appeal is made by Mr Christopher Cooper against the decision of New Forest District Council. • The application Ref 10/96257, dated 9 September 2010, was refused by notice dated 31 December 2010. • The application was made under section 191(1)(a) of the Town and Country Planning Act 1990 as amended. • The use for which a certificate of lawful use or development is sought is the use of ex RAF building marked (D) on plan as a dwelling for more than 4 years; the use of ex RAF building marked (E) on plan for storage. Summary of Decision: The appeal is dismissed. The Inquiry 1. The inquiry opened on 25 January 2011 into the appeal against the enforcement notice. The inquiry was adjourned on the same day to enable Mr Cooper to submit an appeal against the decision of the Council to refuse to issue a certificate of lawfulness and development (the LDC) and for the two appeals to be heard together. 2. The inquiry resumed on 7 June 2011 but had to be adjourned after the site visit on the second day because of illness. The inquiry sat for a final day on 14 June. All evidence was taken under affirmation. 3. An application for costs was made by the Council against the appellant and by the appellant against the Council. These applications will be the subject of separate Decisions. Grounds of appeal 4. Appeal 1 was made initially on ground (d) only, that it was too late to take enforcement action against the matters stated in the notice. In summary, the appellant considered that: a) Building D was an existing dwelling and that planning permission was not needed to site a caravan within its curtilage. b) Building B had been on the site since at least 1985 and no new building had been erected. c) In terms of the hard standing, gravel had always been present on the land, the site being adjacent to a former gravel extraction works. 5. At the start of the inquiry I questioned whether these points were confined to a ground (d) appeal and suggested that underlying the case was also an appeal on ground (c), that a breach of planning control had not occurred. Then, during the course of presenting his own evidence at the inquiry, Mr Cooper implied that the storage was ancillary to the residential use. Towards the end http://www.planning-inspectorate.gov.uk 2 Appeal Decisions APP/B1740/C/10/2131327, APP/B1740/X/11/2144123 of the inquiry, after the Council addressed the matters I had raised about the notice, the appellant submitted that the notice was invalid and also that it had been incorrectly served. I will take all these matters into account. 6. Both appeals primarily raise ‘legal issues’ and therefore the burden of proof is on the appellant. The relevant test of evidence on such matters is the balance of probability. The enforcement notice 7. The Council issued an enforcement notice to remedy any injury to amenity caused by the breach of planning control. The intention is to under enforce the breach and thereby grant deemed planning permission under the provisions of section 173(11) 1. 8. The Council put forward two changes to the alleged breach of planning control. The first involved deletion of the reference to a trampoline because prior to the opening of the inquiry the Council considered that the trampoline was not a structure 2. The second involved a reduction in the extent of the hard surfacing. An amended plan, with these two changes, was prepared. The Council also confirmed the siting of the mobile home was for residential purposes and that the formation of the storage area was part of the change of use, not an operational development. The Council raised no objection to improving the order of the wording of the breach, in line with my suggestion. 9. In relation to the requirements, the Council proposed that the reference to ancillary use in step (ii) should be deleted and that steps (iv) to (viii) should be deleted. The Council also accepted that the wording of step (i) could be improved. 10. The appellant considered that he would suffer injustice because there were too many errors to be corrected, the LDC would not be able to be determined and his right to apply to extend building D would be taken away. The appellant refused to take the amended plan submitted by the Council and refused to accept any alteration to the plan. He considered that it would cause him great injustice and that the notice was invalid. He preferred a new notice to be issued. 11. I have the power to correct any defect, error or misdescription or to vary the terms of the notice if no injustice will be caused to the appellant or the local planning authority (s176(1)). Possible changes to the notice were discussed fully at the inquiry with a view to ensuring it correctly described the breach of planning control the local authority considered was involved and that the requirements were not excessive. Importantly, the changes put forward would not result in a very different notice. They would reduce the scope of the operational development and the extent of the requirements. The time limits relevant to the ground (d) appeal would not be affected.