Barnstormers in court
Posted: 26th November 2012
A couple who said they had spent £100,000 building a barn on their land without planning permission have been ordered to tear it down by a High Court judge who ruled that they had attempted to ‘manipulate the planning process’. In granting an injunction, requiring removal of the unauthorised structure, a judge said that the couple had been repeatedly refused consent to build the barn in a North Yorkshire field but had attempted to obtain development rights by default.
Finding the couple guilty of ‘reprehensible’ conduct, Mr Justice Coulson said that, following four rejected planning applications, the couple had given notice to Harrogate Borough Council of their intention to carry out what they claimed was permitted agricultural development. The notice was accompanied by a £45 fee, although the correct fee would have been £50, and the couple were notified by the council that prior approval for the development was required.
A few days after the council reached its decision, the couple sent the remaining £5 of the fee required under cover of a letter that was in almost identical terms to their first notice. The council did not reiterate its decision that prior approval was required. That was the basis for the couple’s arguments that it was only on payment of the additional £5 that their notice became valid, so that the council’s earlier decision was in respect of an invalid application and was therefore itself invalid. In those circumstances it was submitted that planning consent had been granted by default.
Construction work began on the barn in late 2010 or early 2011and only came to an end in June or July 2012 by which time it had three complete walls and the steel roof structure in place, together with some internal block work.
Rejecting the couple’s case, the judge said that they had sought to ‘play the system’ and had taken a ‘clear and calculated risk in going ahead with the construction of the barn’ when an enforcement notice issued in 2006 remained in force. Upholding the couple’s arguments would be ‘uncomfortably close to allowing the defendants to take advantage of their own wrong’, he observed.
He added: ‘I can only conclude that the underpayment was deliberate. Whilst it is unclear precisely what advantage they thought they might achieve by paying less than the full fee, I am in no doubt that it was the first step in a process by which the defendants sought to manipulate the planning process for their own benefit.
‘I conclude that this partially-built barn was not reasonably necessary for the purposes of agriculture within the defendant’s farm. It was not designed for the purposes of the activities which the defendants might reasonably conduct on their farm. I have concluded that there was no valid planning permission for this barn. In those circumstances, I consider that there is an overwhelming case for the court to exercise its discretion in favour of an injunction, requiring the demolition of the partially-built barn.
Of course, it is a great shame that, when the injunction is granted, any money that the defendants have spent on the barn will be wasted. But the defendants knew or must have known that they were spending such money at their own risk. This was a deliberate decision to build as much of the barn as possible so that they could better run the argument that it would be a waste if it was demolished. That is another way of effectively playing the system. I cannot refuse the injunction because it would involve the defendants in wasted expenditure in circumstances where the defendants have caused that waste themselves.’