Town and country planning – Change of use – Viability assessment – Claimant seeking permission for change of use of agricultural land to temporary dwelling – Local authority failing to determine application – Inspector appointed by first defendant secretary of state dismissing appeal – Claimant challenging decision – Whether inspector lawfully concluding claimant failed to establish financial viability of business – Claim dismissed
On 22 April 2020, the claimant submitted a planning application to the second defendant local authority seeking permission to change the use of some agricultural land at Hillhead Farm, near the hamlet of Pitchcott, to allow the siting of a temporary dwelling.
The land was farmed by the claimant with a herd of over 60 breeding cows. He proposed to increase the size of his herd to over 100 cows within a three-year period. His application stipulated that the dwelling was intended to house a rural worker, namely the claimant himself and his family, and permission was sought for a temporary period of three years.
The second defendant failed to determine the application within the permitted period and the claimant appealed against the deemed refusal of the application to the first defendant secretary of state.
An inspector appointed by the first defendant dismissed the appeal. The claimant challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990.
The issue for determination was whether it was lawful for the inspector to conclude that the claimant had failed to establish the financial viability of his business as required by the emerging local plan. The land fell within an area that the local plan designated as an “area of attractive landscape”.
Policy H3(f) of the local plan provided that all new temporary dwellings for an agricultural, forestry or rural worker would only be permitted if, amongst other things, the future economic viability of the enterprise to which the proposed dwelling related could be demonstrated by a sound business plan which had a reasonable prospect of delivering a sustainable profit before or by the expiry of the temporary period that the proposal sought to secure.
Held: The claim was dismissed.
(1) The burden of proving his case to the inspector fell on the claimant as appellant in the appeal. There was ample information to show the claimant the importance of demonstrating the financial viability of his business. The wording of policy H3(f) made it clear that this was one of several essential criteria having to be met. The advice to the defendant on the application was that the claimant’s financial information was “not sufficiently robust”. The defendant’s confirmation of the grounds on which it would have refused the application made clear that it considered financial viability not to have been shown.
Financial viability was identified as a key issue by the inspector in advance of the hearing and the claimant was therefore on notice that it would be discussed. It was in the nature of an appeal conducted by the hearing procedure that there would be an inspector led discussion of the issues. The discussion was dynamic. Within the broad framework of the inspector’s agenda evidence was introduced by the parties in real time as part of the discussion.
(2) The claimant maintained that he had no opportunity properly to respond to that evidence. However, the claimant was able to choose whom would represent his case at the hearing and was accompanied by two professional witnesses. The focus of the present claim was criterion (f).
The test of financial viability as described in the policy had to be objective, otherwise it would be open to applicants for planning permission to distort the analysis with specific contentions that could prove difficult to verify.
An objective test also imposed the requisite degree of consistency to decision-making in this policy area. The objective nature of the assessment was not seriously disputed by the claimant. He preferred to advance the argument that even on an objective basis the inspector’s conclusion was without foundation.
The inspector had carefully recorded and analysed the evidence from both sides which led to his conclusion about the lack of financial viability in the business plan.
He noted the evidence about the number of workers likely to be needed to service a herd of the size the claimant projected it would become within the three-year period. He acknowledged the evidence about the average farm wage, how in practice the claimant would expect to bring in any additional labour he might need, and the allowance made by the claimant in the financial projections for paying occasional labour whom he could not call upon to work for free.
The inspector concluded that, on an objective basis, a business plan which assumed little or no costs attributable to additional agricultural labour was not viable.
(3) The inspector concluded on the evidence that the claimant had not demonstrated his business plan to be financially viable. That was a conclusion that he was entitled to arrive at on the evidence and was not irrational. The claimant maintained his vehement disagreement with the inspector’s conclusions on the evidence but that did not make them unlawful.
His argument amounted to a challenge to the planning merits assessed by the inspector, and in doing so it was an invitation to the court to trespass upon the “exclusive jurisdiction” of the inspector as decision-maker: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2018] PTSR 746 considered.
(4) A subsidiary argument by the claimant was that an adverse conclusion on the financial viability of his business plan represented a low risk for the defendant because he had only applied for a three-year temporary permission and hence if the business had not proven to be viable after three years, he could then be required to vacate the land.
But that ignored the fact that the wording of the policy had been constructed to require a forward-looking estimation of future viability, and the demonstration of likely future viability was a precondition to allowing the erection of dwellings in the countryside that would otherwise be unacceptable in policy terms.
The presence of a rural dwelling associated with an unsustainable business in an otherwise unacceptable location, even for the balance of three years, was contrary to the interests of good planning. It was therefore legitimate for the defendant to draft and apply policies aimed at avoiding such an outcome.
The claimant appeared in person; Michael Fry (instructed by the Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
