Case Reference: 3349508

Appeal Decision
Site visit made on 12 March 2025
by D Hartley BA (Hons) MTP MBA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 14 MARCH 2025
Appeal Ref: APP/C3430/C/24/3349508
Squirrels Rest, Poplar Lane, Hatherton, Cannock, WS11 1RS
• The appeal is made under section 174 of the Town and Country Planning Act 1990 (as
amended). The appeal is made by [APPELLANT] against an enforcement notice issued by
South Staffordshire District Council.
• The notice was issued on 8 July 2024.
• The breach of planning control as alleged in the notice is (i) without planning
permission, unauthorised development consisting of the erection of a wooden chalet and
associated patio area, located on the land coloured green on the Plan, and (ii) without
planning permission, the material change of use of the Land, to a mixed use as
agriculture and residential and for the following non-agricultural uses: a) use as a
paddock for the keeping of ponies and horses on field 1 outlined in blue on the Plan in
connection with the domestic residential use of the adjacent dwelling, b) use as a
sensory garden/playground on field 2 outlined in blue on the Plan in connection with the
domestic residential use of the adjacent dwelling, c) use as a paddock for the keeping of
goats on field 3 outlined in blue on the Plan in connection with the domestic residential
use of the adjacent dwelling, including the erection of fencing outlined in pink to
facilitate the material change of use of the land.
• The requirements of the notice are to: i) remove the wooden chalet and any materials
used to form the base and the associated patio area and steps from the Land, ii) restore
the land back to the condition it was in before the wooden chalet and associated patio
area was erected upon it, iii) cease the use of the Land for use as a paddock for the
keeping of ponies and horses, for use as a sensory garden/playground and for use as a
paddock for the keeping of goats, iv) remove the large children’s wooden climbing
frame and all materials connected to it from the Land, v) remove the fencing (shown in
the approximate position marked pink on the Plan used to demarcate fields 1-3 from
the Land, vi) restore the Land (outlined in blue marked fields 1 – 3 on the plan) back to
the condition it was before the unauthorised development took place.
• The period for compliance with the requirements is three months,
• The appeal is proceeding on the ground[s] set out in section 174(2)(a), (c), (d) and (f)
of the Town and Country Planning Act 1990 (as amended). Since an appeal has been
brought on ground (a), an application for planning permission is deemed to have been
made under section 177(5) of the Act.
Decision
1. It is directed that the enforcement notice be varied by deleting the number 4
before ‘what your are required to do’ and replacing it with the number 5.
Subject to the above variation, the appeal is dismissed, the enforcement notice
is upheld, and planning permission is refused on the application deemed to
have been made under section 177(5) of the 1990 Act as amended.
Preliminary Matters
2. The National Planning Policy Framework was revised in December 2024 (the
2024 Framework) and was subsequently amended on 7 February 2025 to
correct cross-references from footnotes 7 and 8 and amend the end of the first
sentence of paragraph 155 to make its intent clear. For the avoidance of doubt,
the amendment to paragraph 155 does not constitute a change to the policy
set out in the 2024 Framework. The 2024 Framework replaces the previous
version of the National Planning Policy Framework published in December
2023. I afforded the main parties the opportunity to comment on the
implications of the 2024 Framework as part of the determination of this appeal.
3. As part of my site visit, I noticed that a blue metal container was positioned to
the side of the wooden chalet building which is the subject of this appeal. I do
not know what it is being used for, or the circumstances which led to it being
positioned on the site. It does not form part of the breach of planning control,
and I have not taken it into account for the purposes of my assessment of the
deemed planning application.
The Notice
4. The paragraph numbering in the notice is incorrect. In the section under ‘what
you are required to do’, the paragraph number should be five and not four. I
shall vary the notice, without injustice being caused to the main parties, by
deleting the number 4 before ‘what you are required to do’ and replacing it
with the number 5.
Ground (c) appeal
5. The appeal made on ground (c) is that the matters alleged do not constitute a
breach of planning control. The claim made by the appellant is that field Nos. 1
and 3 falling within the appeal land, as annotated on the plan attached to the
notice, are in use for the grazing of animals and hence are in agricultural use.
6. Section 336 of the Act provides a definition of agriculture. It states agriculture
”includes horticulture, fruit growing, seed growing, dairy farming, the breeding
and keeping of livestock (including any creature kept for the production of
food, wool, skins or fur, or for the purpose of its use in the farming of land),
the use of land as grazing land, meadow land, osier land, market gardens and
nursery grounds, and the use of land for woodlands where that use is ancillary
to the farming of land for other agricultural purposes, and “agricultural” shall
be construed accordingly”.
7. The appellant states that the ‘appellant may keep ponies, horses and goats for
pleasure but, the definition of agriculture does not require use for business
purposes’. The appellant states that the miniature ponies are not intended to
be ridden. He also comments that there are no stables or other structures on
the land whereby the livestock can be kept independently from its use for
grazing.
8. As part of the appeal, I sought clarity from the appellant in terms of how the
animals were being kept on the land. The appellant did not respond to this
request. Nonetheless, it is noted that in his appeal correspondence he refers to
the animals being kept. Moreover, in terms of his ground (d) appeal, he says
the land has ‘been in continuous use for the keeping/grazing of horses/ponies
for well in excess of 10 years’.
9. The onus is on the appellant to make his case on legal grounds. While the fields
may be being used for grazing purposes for at least some of the time, the
appellant’s evidence casts sufficient doubt about whether such animals are also
being ‘kept’ on the land as distinct from simply grazing. Despite being given an
opportunity to clarify matters, the appellant’s written evidence remains
insufficient and ambiguous in terms of feed (i.e., whether supplementary feed
is provided) and care arrangements. The evidence is also silent in terms of
what happens to the animals when the weather is inclement.
10. On the evidence that is before me, and, on the balance of probability, I find
that when the notice was issued the evidence does not precisely and
unambiguously demonstrate that field Nos. 1 and 3 were in agricultural use.
11. The appellant does not dispute that field No. 2 is being used as a sensory
garden/playground. There is also a children’s wooden climbing frame on this
part of the land. There is no evidence to support any claim that this land has
planning permission for such a domestic/residential use. In effect, I find that
field Nos. 1, 2 and 3 are being used for outside residential purposes as an
extension to the use of Squirrels Rest as a dwellinghouse. Such unauthorised
development constitutes a material change of use of the land for which
planning permission is required.
12. For the above reasons, I conclude that the ground (c) appeal fails.
Ground (d) appeal
13. The appeal made on ground (d) is that at the date when the notice was issued,
no enforcement action could be taken in respect of any breach of planning
control which may be constituted by those matters. In an appeal against an
enforcement notice on ground (d), the burden of proving relevant facts is on
the appellant, and the relevant test of the evidence is on the balance of
probability.
14. The claim made by the appellant is that if the ground (c) appeal fails, field No.
1 began to be used for the grazing of ponies in 2000 when the horse exercise
arena was constructed. He claims that it has been in the same use continuously
for more than ten years. As a matter of fact and degree, I have concluded that
the evidence is not sufficiently precise or unambiguous to demonstrate that
field No. 1 was in agricultural use when the notice was issued. Moreover, the
evidence from the appellant is not sufficiently precise or clear to demonstrate
that this land has been used solely for grazing for a continuous period of ten
years.
15. The onus is on the appellant to make his case on legal grounds. His claim that
field No. 1 has been in continuous use for agricultural purposes is not
supported by precise and unambiguous evidence. It is noted that as part of the
ground (d) appeal, the appellant refers to ‘keeping’ horses and ponies on the
land. This casts sufficient doubt about use of the land for a continuous period of
ten years for solely grazing purposes. In this regard, the ground (d) appeal
fails.
16. The appellant does not make a claim that the mixed use of the land has not
occurred. He does not make the claim that the sensory garden/playground or
operational development in the form of the wooden chalet building with
associated patio are immune from enforcement action owing to the passage of
time. In this respect, I also conclude that the ground (d) appeal fails.
Ground (a) appeal and the deemed planning application
Main Issues
17. An appeal is made under ground (a) which is that planning permission ought to
be granted in respect of the breach of planning control alleged in the notice.
The appeal site falls within land designated as Green Belt. I have considered
the reasons for issuing the notice and the deemed planning application main
issues are: -
• whether the development is inappropriate development in the Green
Belt including its effect on the openness and purposes of Green Belt,
and,
• whether any harm by reason of inappropriateness, and any other harm,
is clearly outweighed by other considerations, so as to amount to the
very special circumstances necessary to justify the development.
Whether inappropriate development in the Green Belt
18. I have considered whether paragraph 155 of the 2024 Framework is relevant in
terms of the breach of planning control. Even if the development were found to
be on a site that was grey belt land, I do not find that any aspect of the
unauthorised development meets all the relevant criteria in paragraph 155 a)
to d) of the 2024 Framework. In particular, the evidence does not indicate a
demonstrable unmet need for the respective developments that are the subject
of the notice. The appellant may wish for his child to have use of a separate
building for sensory and tuition purposes, but that is not the same as
demonstrating evidence of demonstrable unmet need for the type of
development proposed. Consequently, the unauthorised development does not
accord with all the requirements of paragraph 155 of the 2024 Framework.
19. The wooden chalet building (with facilitating patio) occupies land to the north
of the dwellinghouse. The appellant states that it is being used as a sensory
room by one of the appellant’s children who occupies Squirrels Rest and has a
specified disability. Given its position, I do not find that it has an intimate
association with the dwellinghouse, and, moreover, it could not reasonably be
said to constitute an extension to Squirrels Rest. It is positioned to the side of
the approved ménage, and alongside the boundary of the site with bridleway
No. 4. Even if one were to disagree with my finding about the chalet building
not constituting an extension to Squirrels Rest, it is, in any event,
disproportionately large when considered against the dwellinghouse and hence
such development does not meet the requirements of paragraph 154(c) of the
2024. Given its position, size and use, the chalet building does not meet any of
the exceptions listed in paragraph 154 of the 2024 Framework.
20. Paragraph 154(h)(v) of the Framework states that material changes in the use
of land (such as changes of use for outdoor sport or recreation, or for
cemeteries and burial grounds), do not constitute inappropriate development in
the Green Belt provided they preserve its openness and do not conflict with the
purposes of including land within it. In the judgement of Royal Borough of
Kingston upon Thames v SSLUHC [2023] EWHC 2055 (Admin), the judge
confirmed that residential uses do not fall within this exception. Furthermore, it
was held that it is not an open-ended category, but rather, because of the
words “such as”, the uses that will be within it should take their flavour or
extent from the examples given. Therefore, I do not find that paragraph
154(h)(v) of the 2024 Framework is relevant in respect of the residential use of
the land.
21. Even if one were to disagree with the above, it is noteworthy that the sensory
garden/playground in field No. 2 includes a children’s wooden climbing frame.
Moreover, owing to its height the wooden climbing frame is visible from parts
of Poplar Lane (particularly when the gates are open) and from longer distance
views to the east. While the sensory garden/playground has not had a very
significant impact on the openness of the Green Belt in spatial and visual
terms, in my judgement it does not meet the test of preserving the openness
of the Green Belt.
22. While animals in field Nos. 1 and 3 would suitably preserve the openness of the
Green Belt, it is noted that the unauthorised use of this land has included the
erection of facilitating fencing which I find has resulted in some spatial and
visual harm to the openness of the Green Belt. Moreover, and, in this context,
the use of this land is visually appreciated, alongside the use of field No. 2 as a
sensory garden/playground, as constituting an enlarged residential plot for
Squirrels Rest. In visual terms, field Nos. 1, 2 and 3 are seen as an extension
of the land associated with the residential property known as Squirrels Rest. I
find that it has sought to further urbanise this area of countryside. Accordingly,
I find that it has led to conflict with one of the Green Belt purposes, i.e., to
safeguard the countryside from encroachment.
23. While bridleway No. 4 includes mature boundary planting along large parts of
its length, there are nonetheless some gaps within the planting. Hence, the
three ‘fields’, and including the wooden climbing frame, are also visible from
glimpsed views from bridleway No. 4. It is also important to emphasise that
approval of the sensory garden/playground would have the potential to result
in the provision of other play equipment or domestic chattels/paraphernalia
which may also further erode the openness of the Green Belt.
24. I therefore find that the use of field Nos. 1, 2 and 3 has resulted in countryside
encroachment. In this regard, it fails to serve the Green Belt purpose in
paragraph 143(c) of the Framework which is to assist in safeguarding the
countryside from encroachment. In effect, this development has resulted in the
enlargement of the residential plot associated with Squirrels Rest.
25. For the above reasons, I conclude that the unauthorised development
constitutes inappropriate development in the Green Belt. Paragraph 153 of the
Framework states that inappropriate development is, by definition, harmful to
the Green Belt, and local planning authorities should ensure that substantial
weight is given to any harm to the Green Belt, including harm to its openness.
Effect on the openness and purposes of the Green Belt
26. The evidence is that field Nos. 1, 2 and 3 were in agricultural use prior to the
unauthorised material change of use occurring. I have already concluded that
the unauthorised use of field Nos. 1, 2 and 3 has caused some harm to the
openness of the Green Belt. Furthermore, there is some conflict with one of the
purposes of the Green Belt.
27. The wooden chalet building (including its associated patio) is large in the
context of the size of the dwellinghouse. Part of its roof can be seen from
Bridleway No. 4 and some of it is noticeable from the more open and longer
distance views to the east. In spatial and visual terms, I find that this
development has had a moderately adverse impact on the openness of the
Green Belt. The evidence is that this land was previously devoid of built form
and had a more rural and open character.
28. Like the use of field Nos. 1, 2 and 3, I consider that the chalet and patio has
led to countryside encroachment and, in effect, has resulted in the enlargement
of the residential plot associated with Squirrels Rest. This development
therefore fails to serve the Green Belt purpose in paragraph 143(c) of the
Framework which is to assist in safeguarding the countryside from
encroachment.
Other Considerations
29. Article 8 of the European Convention on Human Rights as incorporated into the
Human Rights Act 1998 (HRA) states that everyone has a right to respect for
private and family life, their home and correspondence. This is a qualified right,
whereby interference may be justified in the public interest, but the concept of
proportionality is crucial.
30. I am also mindful that Article 3(1) of the United Nations Convention on the
Rights of the Child provides that the best interests of the child shall be a
primary consideration in all actions by public authorities concerning children.
31. I acknowledge that the appellant’s child has a particular disability that requires
specialist educational and other support. I do not doubt that having a sensory
garden/playground, as well as use of the appeal building for sensory and
tuition purposes, and away from the distractions of the appellant’s other
children, offers the child the facilities needed for emotional, social, and
educational needs. These are matters which weigh in favour of allowing the
chalet building.
32. Notwithstanding the above, the needs of the appellant’s child must be weighed
against the collective harm that has been caused to the Green Belt to which I
afford substantial adverse weight. I note that planning applications have
previously been refused for the erection of a sensory building in connection
with the property known as Squirrels Rest. Such proposals were in combination
with other proposed development and included land outside the residential
curtilage of Squirrels Rest. It is also noteworthy that the needs of the
appellant’s disabled child were also considered by me as part of a dismissed
appeal in July 20231. At this time, the appellant was proposing to make use of
a sensory caravan for the disabled child, also on land outside the curtilage of
Squirrels Rest.
33. As outlined in the July 2023 dismissed appeal, there is no evidence to indicate
that it would not be possible, in principle, to provide a well-designed and
proportionate extension to Squirrels Rest to provide a ‘sensory room’ in
accordance with paragraph 154(c) (formerly paragraph 149(c)) of the 2024
Framework, while at the same time retaining the integral character and
appearance of the dwellinghouse. Indeed, as part of the July 2023 dismissed
1
Appeal Ref: APP/C3430/W/21/3282975 - change of use of land to mixed use for the keeping of horses and as a
residential gypsy caravan site for the stationing of three caravans, together with laying of hardstanding, erection
of amenity building, stable and haybarn.
appeal, the local planning authority commented that it ‘would encourage an
alternative application compliant with NPPF paragraph 149(c) that is
proportionate, well-designed in relation to the existing building, and does not
encroach beyond the approved domestic curtilage, and would treat such an
application on its merits’.
34. Furthermore, and, as outlined in the July 2023 appeal decision, the evidence
does not indicate that a refusal of planning permission would necessarily mean
that the appellant’s child would not be able to be home tutored in Squirrels
Rest following the family making some arrangements to ensure improved
peace and quiet during the times when home tutoring takes place. I appreciate
that this option may not be as desirable as having a dedicated sensory room as
an extension to Squirrels Rest, but I find that it is likely that there is potential
for such an arrangement to occur, at least for a short time, and until a policy
compliant extension had been approved and constructed.
35. The evidence is that there are potentially less harmful and, importantly, Green
Belt policy compliant options that could be explored by the appellant which
would meet the needs of his disabled child from a tuition and well-being point
of view. This therefore diminishes the weight that I afford to the identified
personal circumstances.
36. The appellant states that the unauthorised sensory garden/playground must be
in its current location because the outside land within the curtilage of Squirrels
Rest is hardstanding. There is indeed an extensive amount of hardstanding
around Squirrels Rest. However, the evidence does not lead me to conclude
that some of it could not be given over to grass for the purpose of being used
as a softer area for play and/or as an area where the appellant’s disabled child
can have relative peace and quiet, or indeed where the wider group of children
may want to play. The appellant states that ‘there is nowhere within the
residential curtilage where play equipment can be safely installed’. This
comment is not reasonably substantiated. The area of hardstanding around
Squirrels Rest is extensive. I have not been provided with a good reason as to
why a safe and enclosed area for children to play could not be provided within
the curtilage of Squirrels Rest.
Planning Balance and Conclusion
37. I have found that the breaches of planning control amount to inappropriate
development in the Green Belt. Moderate harm has been caused to the
openness of the Green Belt in respect of the chalet building (with facilitating
patio) and some harm has been caused to the openness of the Green Belt from
the use of field Nos. 1, 2, and 3 and including facilitating development.
Moreover, the respective developments have failed to safeguard the
countryside from encroachment and therefore there is conflict with one of the
Green Belt purposes. I afford the totality of the harm to the Green Belt
substantial adverse weight in decision making terms. In these respects, the
unauthorised material change of use and operational development does not
accord with the Green Belt requirements of policy GB1 of the South
Staffordshire Council Core Strategy 2012, and the 2024 Framework.
38. Weighed against the above are the personal circumstances of the appellant’s
child. On balance, and, for the reasons outlined above, I conclude that the
harm by reason of inappropriateness in the Green Belt, coupled with the harm
caused to the openness of the Green Belt and one of its purposes, is not clearly
outweighed by the other considerations identified above so as to amount to the
very special circumstances necessary to justify the development.
39. I acknowledge that my decision would lead to a significant interference of
Article 8 rights. However, the planning harm that I have identified is of such
weight that a refusal of planning permission is a proportionate, legitimate, and
necessary response that would not violate those persons rights under Article 8.
I find that the protection of the public interest cannot be achieved by means
that are less interfering of the rights of the appellant’s child. I have also had
due regard to the PSED. In this case, the totality of the harm caused to the
Green Belt outweighs the benefits of the proposal from the point of view of
meeting the needs of the appellant’s child who has a disability. I conclude that
it is therefore proportionate and necessary that the ground (a) appeal fails, and
that the deemed planning application is refused.
Ground (f) appeal
40. The appeal made under ground (f) is that the steps required by the notice to be
taken, or the activities required by the notice to cease, exceed what is
necessary to remedy any breach of planning control or to remedy any injury to
amenity which has been caused by any such a breach.
41. The claim made by the appellant under ground (f) is that the requirement to
cease the use of land for the keeping of animals is excessive as the animals are
grazing the land and so this amounts to an agricultural use of the land and is
not development given sections 336 and 55(2)(e) of the Act. I have already
considered this matter as part of the ground (a), (c) and (d) appeals. Given my
conclusions, it is not excessive to cease the use of the land for the keeping of
the animals.
42. The purpose of the notice is to remedy the breach of planning control. In this
regard, the requirements in the notice are not excessive.
43. For the above reasons, I conclude that the ground (f) appeal fails.
Overall Conclusion
44. For the reasons given above, I conclude that the appeal should not succeed. I
shall uphold the enforcement notice with a variation and refuse to grant
planning permission on the deemed application.
D Hartley
INSPECTOR