A judge has issued an injunction against the 'wilful' breach of planning rules in the Berkshire green belt, backing enforcement action by Wokingham District Council despite support from constituency MP, Theresa May (then Home Secretary) for the case to be dropped.
The horticultural nursery, Hatch Hare has historic lawful planning permission for use as a horticultural nursery and a farm shop with a butchery and cafe. A number of applications were made by the defendant over the years to expand the site including for the erection of a building for retail sales, change of use of a display area to a restaurant and the demolition and replacement of a building plus revised parking layout and additional landscaping to accommodate retail space. All applications were refused on green belt grounds.
Despite the refusals, the site was developed to include a wide range of retail outlets, an animal petting area and the café was expanded.
On 24 October 2015, Wokingham Borough Council served an enforcement notice on the joint owner and First Defendant, Mr Scott for the unauthorised change of use to a garden centre with retail and residential uses. This notice was withdrawn and a new notice issued on 20 August 2013 following further identified breaches of planning control.
In 2015, Mr Scott made an application for a Certificate of Lawful Existing Use of Development for retail sale of goods to the public. This was refused on 31 March 2015 as the application was subject to a valid enforcement notice. The decision was appealed and the appeal was dismissed on 5 October 2016 with a costs order against the First Defendant on the basis that “the validity of an enforcement notice shall not, expect by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.” An application to judicially review the Inspector’s decision not to allow the appeal was made and dismissed in January 2017 as being totally without merit as “the inspector had now power to make a different decision.”
Evidence of non-compliance with the enforcement notice was collected during at site visits in April 2014 and April 2016. On 7 August 2015, the First Defendant’s planning agent alleged that the notice was a nullity. On 8 October 2015, a further planning application was made by the First Defendant for proposed change of use of land and buildings to a children’s play area and recreational farm and another application was submitted for change of use of part of a building. The applications were not determined by the Claimant pursuant to the provisions of section 70C of the TCPA 1970 and the First Defendant was refused permission to judicially review the Claimant. This application was also refused on a renewed oral application for permission in July 2016. An application to the Court of Appeal was withdrawn.
Following a three day hearing in January this year at which the Claimant sought an injunction, Judge Walden-Smith yesterday (20 February 2017) handed down judgment stating that Mr Scott had “completely exhausted the planning process” in order to retrospectively gain the necessary consent for the current use of the site and had shown “a clear and wilful intention to breach planning control.”
On issuing the injunction, Judge Walden-Smith "There is a clear need for the local planning authority to be able to enforce planning control in the green belt in the general interest of the public.” "Even if there is a general and widespread support for this business, as I am told there is, that support does not circumvent the need for planning control."
The occupants of the land in breach of planning control have been given ten weeks, until May 1 2017, to move on.
The case is important not only for upholding enforcement of the Green Belt but also because it clarifies the circumstances in which an enforcement notice can be appealed with reference to Hughes LJ, a he then was, obiter comments in the case of Staffordshire County Council v Challinor and the statutory basis upon which an interim injunction can be granted.
Saira Kabir Sheikh QC appeared at the hearing for Wokingham Borough Council instructed by Laurel Isaacs. Saira also acted in the related appeals to the Secretary of State and in other court proceedings.
Claim No: HQ 6X01427
 285 (1) TCPA 1990