Planning agreement — Proposed house in green belt for farmworker — Permission granted subject to model agricultural occupancy condition — Local planning authority also requiring applicant to enter into section 52 agreement binding on successive owners — Covenants requiring occupier to be currently employed in agriculture and non-alienation of house from farm — Obligations more restrictive than condition and contrary to advice in Circular 1/85 — Council’s purpose to preclude future appeal to minister — Challenge by new owners to validity of agreement — Whether obligations in agreement could have been imposed lawfully as conditions — Whether council’s purpose in bypassing the minister improper
In 1985 the
then owner-occupier of Ashlings Farm, Blackmore Road, High Ongar, Essex, sought
planning permission to erect a house for a farmworker on part of the farm in
the metropolitan green belt. The local planning authority, who were concerned
to prevent subsequent abuse of the permission, imposed a condition,
corresponding to model condition 32 in Appendix A to Circular 1/85 — The use
of conditions in planning permissions, limiting occupation of the dwelling
to persons wholly or mainly employed, or last employed, locally in agriculture,
or a widow or widower of such a person. In addition, they required the
applicant to enter into an agreement under section 52 of the Town and Country
Planning Act 1971 (section 106 of the Town and Country Planning Act 1990). The
obligations imposed by the covenant in the agreement (‘the clause 3 obligations’)
were wider than the planning condition in that they required the occupier of
the house to be currently employed in agriculture and precluded severance of
the ownership of the house from the rest of Ashlings Farm.
The plaintiffs
became the owners of the farm in June 1987 and purchased it aware of the terms
of the section 52 agreement, which had been registered as a local land charge.
Agricultural patterns having changed, the plaintiffs wished to sell the house
for occupation by a non-agricultural worker and apart from the rest of the
farm. In an action against the council they sought a declaration that the
section 52 agreement was ultra vires and void. The plaintiffs, who
relied on the advice on agricultural occupancy conditions given in paras 80 and
81 of Circular 1/85, contended that the council had sought to achieve by use of
the section 52 agreement that which they could not achieve by way of conditions
and which they knew to be outside their planning powers. Further, the council’s
purpose in requiring the section 52 agreement was to ensure that they could
have their own way, free from control or review by the Secretary of State: that
was not a proper planning purpose and was contrary to the objectives of the
planning legislation and public policy.
1. The council
would have been acting within their powers as a local planning authority if
they had imposed the clause 3 obligations as conditions attached to the
planning permission. Restrictions in those terms would have been imposed for a
planning purpose and would have satisfied the three-fold test set out by Lord
Scarman in Newbury District Council v Secretary of State for the
Environment [1981] AC 578 at p 618G in that: (a) they fairly and reasonably
related to the draft local plan and to planning considerations affecting the
land; (b) they fairly and reasonably related to the permitted development; and
(c) given the green belt problems confronting the council and duly appreciating
their statutory duties, they would not have been acting perversely in imposing
such conditions: see pp 109G-110E. The lawfulness of the conditions
could not depend on whether a minister would in fact have upheld them on
appeal. The obligations, if imposed as conditions, might well not have
withstood an appeal to the Secretary of State, who might have taken a different
view on the planning merits and might even have ordered the council to pay the
costs of the appeal, but that was a far cry from saying that, by imposing
conditions in the teeth of recommendations in the circular, the council would
have been acting beyond their statutory powers: dictum of Willmer LJ in Hall
& Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR
240 at p 248 applied: see pp 110E-111A. Guidance given by circulars, while
representing Government policy which a local planning authority should properly
take into account, was not immutable and inflexible, as shown by the planning
policy guidance (PPG7) issued in January 1992, which expressly envisaged the
use of planning obligations to tie a farmhouse to adjacent farm buildings to
prevent their being sold separately: see p 111B-D.
2. Although
the council’s purpose in choosing to impose the clause 3 obligations in a
section 52 agreement, rather than as planning conditions, was to preclude a
future appeal to the minister, they were not activated by a non-planning
consideration and such purpose, although unattractive, was within their powers
and was not contrary to public
and Compensation Act 1991 would, for the future, give a right of appeal to the
minister against a planning authority’s refusal to modify or discharge a
planning obligation was not a justification for reaching a different view regarding
the courses lawfully open to a local planning authority in the past: see p
112A-C.
to in the judgment
Bradford
City Metropolitan Council v Secretary of State
for the Environment (1986) 53 P&CR 55; [1986] 1 EGLR 199; 278 EG 1473;
[1986] JPL 598, CA
Hall
& Co Ltd v Shoreham-by-Sea Urban District
Council [1964] 1 WLR 240; [1964] 1 All ER 1; (1963) 62 LGR 206; 15 P&CR
119; [1963] EGD 638; 188 EG 873; [1964] JPL 316, CA
Newbury
District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
R v Gillingham Borough Council, ex parte F Parham Ltd (1987)
58 P&CR 73; [1988] 1 PLR 7; [1988] JPL 336
R v Wealden District Council, ex parte Charles Church South East
Ltd (1989) 59 P&CR 150; [1989] 3 PLR 42; [1989] JPL 837
R v Westminster City Council, ex parte Monahan [1990] 1 QB 87;
[1989] 3 WLR 408; [1989] 2 All ER 74; (1988) 58 P&CR 92; [1989] 1 PLR 36;
[1989] JPL 107, CA
Action
This was an
action by Mr and Mrs Good, the owners of Ashlings Farm, Blackmore Road, High
Ongar, Essex, for a declaration that an agreement entered into by their
predecessor in title, Mr Elves, with the defendants, Epping Forest District
Council, under section 52 of the Town and Country Planning Act 1971 relating to
a farmworker’s house for which planning permission had been granted by the
council, was ultra vires, null and void.
(instructed by Moss Beachley & Mullem) appeared for the plaintiffs, Mr and
Mrs Good.
QC and Verity Jones (instructed by the solicitor to Epping Forest District
Council) appeared for the defendants.
following judgment was delivered.
SIR DONALD
NICHOLLS V-C: Ashlings Farm, Blackmore Road, High
Ongar, Essex, lies in the Metropolitan Green Belt. In 1985 the owner-occupier,
Mr Elves, applied for planning permission to erect a house for a farmworker on
part of the farm. The farm had 1,000 pigs and Mr Elves needed a house for a
pigman. It was difficult to get labour. Mr Elves wanted to be able to offer the
attraction of a house for a husband and wife, instead of merely ‘living-in’
accommodation in the farmhouse for a single person.
Abuse of
the green belt
The local planning
authority are Epping Forest District Council, to whom I shall refer as ‘the
council’. In common with other planning
considerable pressure to permit the erection of houses in the green belt.
Unfortunately, there have been many instances when the purpose for which a
planning authority granted permission to erect a farmworker’s house has
subsequently been thwarted. The grant of permission for such a dwelling in the
green belt has been abused. For one reason or another, the need for occupation
by a farmworker seems to vanish all too often once the house has been built.
The end result is another house, not occupied by a farmworker, in a rural green
belt area. The members of the council were very sensitive to this problem.
In an attempt
to cope with the problem in the most satisfactory way, the council took two
precautions when granting planning permission to Mr Elves on January 22 1987.
The first was to impose a condition in the following terms:
The
occupation of the dwelling hereby permitted shall be limited to persons wholly
or mainly employed, or last employed, locally in agriculture as defined in
Section 290(1) of the Town and Country Planning Act 1971, or in forestry, or a
dependant of such a person residing with him (but including a widow or widower
of such a person).
The reason
given for this was:
The site is
within the Metropolitan Green Belt, where there is a presumption against
development unless required essentially for the purposes of agriculture,
forestry or for other special reasons. Permission in this case is granted
solely in the light of the special agricultural justification and the
occupation of the dwelling is accordingly restricted in order to ensure its continued
use for a purpose appropriate to the Green Belt and to safeguard the integrity
of Green Belt policy.
The second
precaution was that, at the same time, the council and Mr Elves (and his
mortgagees) entered into a section 52 agreement; that is to say, an agreement
under seal pursuant to section 52 of the Town and Country Planning Act 1971. By
clause 3 of the agreement Mr Elves covenanted with the council, and so as to
bind the farm in the hands of successive owners, in the following terms:
(a) that the said dwellinghouse when erected
shall only be occupied by a person wholly or mainly employed in agriculture
together with the spouse or other dependants of that person
(b) that the said dwellinghouse . . . shall not
be sold away or otherwise alienated from the remainder of the Application Site.
It will be
seen that these provisions, to which I shall refer as the ‘clause 3
obligations’, were more stringent than the condition attached to the planning
permission in two respects. First, the clause 3(a) obligation required the
occupant of the house to be currently employed in agriculture. The planning
permission condition was wider, in that it allowed occupation also by a person
who was last employed in agriculture and by a surviving widow or widower.
Second, the clause 3(b) obligation was expressed to preclude the severance of
the ownership of
condition attached to the planning permission.
In June 1987
Mr and Mrs Good became the owners of Ashlings Farm. When they bought they were
aware of the terms of the section 52 agreement. This had been registered as a
local land charge. The house was duly built.
Agricultural
patterns have now changed. The Goods, it seems, qualify for payment of a ‘set-aside’
allowance. They no longer need a pigman or any sort of agricultural worker.
They wish to be able to sell the house for occupation by a non-agricultural
worker and to sell it apart from the rest of the farm. The primary difficulty
confronting them is the section 52 agreement. They can apply to the council for
permission to continue to use the house without complying with the agricultural
occupancy condition. If, as they fear, the council refuse permission, they can
appeal to the Secretary of State for the Environment. But the position
regarding the section 52 agreement is different. The Goods can request the
council, as covenantees under the agreement, to waive the clause 3 obligations.
If the council decline, they cannot have recourse to the minister. There is no
provision for an appeal to the minister against the council’s refusal to agree
to a modification of a section 52 agreement. The law in this regard has now
been changed, but not with retrospective effect: see section 106B of the Town
and Country Planning Act 1990. The only avenue open to Mr and Mrs Good would be
to make an application to the Lands Tribunal, under section 84 of the Law of
Property Act 1925, for an order discharging or modifying the covenant on the
ground that it ought to be deemed obsolete. Such an application, although not
impossible, would be difficult with a covenant entered into so recently.
The
council’s purpose
It was in
these circumstances that Mr and Mrs Good brought this action. They seek a
declaration that the section 52 agreement is ultra vires, null and void.
Before stating the basis of that contention I must explain why the council
proceeded in the way they did, with restrictions imposed partly by way of a
planning permission condition and partly by way of a section 52 agreement. The
background was Circular 1/85 — The use of conditions in planning permissions
[WO Circular 1/85] published by the Department of the Environment and the Welsh
Office in January 1985. This circular was concerned with the use of conditions in
planning permissions. Paras 80 and 81 dealt with agricultural occupancy
conditions:
80. It may
happen that the circumstances of a case justify the restriction of occupation
of residential accommodation to an agricultural or forestry worker. This may
arise in a case where the land is in an area where policies of restraint on
development apply (eg Green Belt) but special circumstances (the nature of
land-use by the agriculture and forestry industries, and the fact that it is
often necessary for a farmer or landowner to provide accommodation for his or
her workers near their place of work) make it appropriate to grant planning
permission.
81. Where the
erection of a house for an agricultural worker is proposed
granted because the house is intended to serve the needs of agriculture, a
condition may be imposed requiring that the house be occupied only by a person
engaged in agriculture or forestry (Model 32). The condition should never tie
the house to occupation by a worker on a particular farm or smallholding.
Model 32
corresponds to the condition imposed by the planning permission in the present
case.
It is clear
that the council were concerned that a restriction in the terms of clause 3(a),
if imposed as a condition, might well not survive an appeal to the minister at
some future date against a decision by the council refusing permission to use
the house without complying with the condition. Likewise, in view of the last
sentence quoted above, with a restriction in the terms of clause 3(b). So the
council decided to impose, by way of a planning permission condition, a
restriction corresponding to that envisaged in the circular. That condition
accorded with the policy set out in the circular and would be unexceptional. As
to the further restrictions, the council eschewed the ‘condition’ route,
because of its vulnerability to challenge on appeal to the minister. Instead,
it opted for the section 52 agreement route. Thus, on February 17 1986 the
council’s plans subcommittee resolved that, subject to Mr Elves entering into a
section 52 agreement providing for the house not to be ‘subdivided from its
associated agricultural holding’, planning permission should be granted. The
council followed this course in the face of a recommendation in the circular
regarding section 52 agreements (para 10):
10. It may be
possible to solve a problem posed by a development proposal equally well by
imposing a condition on the planning permission or by concluding an agreement
under section 52 of the Act or under other powers. The Secretaries of State
consider that in such cases the local planning authority should impose a
condition rather than seek to deal with the matter by the making of an
agreement, since the imposition of restrictions by means of an agreement
deprives the developer of the opportunity of seeking to have the restrictions
varied or removed by an application or appeal under Part III of the Act if they
subsequently become inappropriate or too onerous.
The
plaintiffs’ case
It is against
that background that Mr and Mrs Good have challenged the validity of the
section 52 agreement entered into by their predecessor Mr Elves. In short,
their argument is that by their own conduct the council have shown that they
were aware that any attempted imposition of the clause 3 obligations as
conditions was doomed to failure. So the council sought to achieve, by use of a
section 52 agreement, that which they could not achieve by way of conditions.
The council knew that the clause 3 obligations were outside their planning
powers. The purpose of the council in requiring the section 52 agreement was to
ensure they could have their own way, free from control and review by the
Secretary of State. That was not a proper planning purpose. That purpose was
contrary to the objectives of the planning legislation and public policy and
did not accord with the standards of conduct expected of a local authority. Mr
Payton, for the plaintiffs, placed much reliance on dicta in two cases
in the Court of Appeal. In Bradford City Metropolitan Council v Secretary
of State for the Environment (1986) 53 P&CR 55 at p 64, Lloyd LJ said:
If the
proposed condition is manifestly unreasonable, then it is beyond the powers of
the planning authority to impose it; and if it is beyond the powers of the
planning authority to impose the condition, then it is beyond their powers to
agree to impose it, even if the developer consents. As is stated in
paragraph 35 of Circular 1/85: ‘An unreasonable condition does not become
reasonable because an applicant suggests it, or consents to its terms.’ If the condition is manifestly unreasonable,
the willingness of the developer is irrelevant. Vires cannot be
conferred by consent.
He added (at p
66):
If the
condition was manifestly unreasonable, and so beyond the powers of the planning
authority to impose it, whether or not the developers consented, it must follow
that it was also beyond the powers of the planning authority to include the
condition as ‘an incidental or consequential provision’ of an agreement
restricting or regulating the development or use of the land under section 52.
In R v Westminster
City Council, ex parte Monahan [1990] 1 QB 87 at p 116H1 Kerr LJ
declined to accept, as a general proposition, a submission by counsel that
Lloyd LJ’s observation was incorrect. He said:
Section 52
agreements undoubtedly facilitate the formulation of qualified planning
permissions in comparison with the imposition of express conditions, and no
doubt they also simplify the procedural aspects of the planning process in many
ways. They have the advantages of the flexibility of a negotiable agreement in
contrast to a process of unilateral imposition; and they are therefore no doubt
far less vulnerable to the risk of successful appeals or applications for
judicial review, which is to be welcomed. But if a particular condition would
be illegal — on the ground of manifest unreasonableness or otherwise — if it
were imposed upon an applicant for planning permission then it cannot acquire
validity if it is embodied in a section 52 agreement, whether at the instance
of the applicant himself or not. That, in effect, was equally the conclusion of
Lloyd LJ in the Bradford case.
1Also reported at [1989] 1 PLR 36 at p 55C.
Could the
obligations have been imposed lawfully as conditions?
The first
question raised by the plaintiffs’ argument is whether the clause 3 obligations
could have been lawfully imposed as planning permission conditions. In this
context, ‘lawful’ is an ambiguous word. So is the word ‘valid’. I am using the
two words interchangeably and as having the meaning embodied in the question:
would the council have been acting within their powers as a local planning
authority if they had
permission pursuant to sections 29 and 30?
In my view, the answer to that question is ‘yes’. Restrictions in the
terms of the clause 3 obligations would have been imposed for a planning
purpose. They would not have been invalid as falling outside the ambit of what
may properly be made the subject of a valid condition in accordance with Lord
Scarman’s well-known three-fold test in Newbury District Council v Secretary
of State for the Environment [1981] AC 578 at p 618G:
(1) The condition must fairly and reasonably
relate to the provisions of the development plan and to planning considerations
affecting the land, (2) it must fairly and reasonably relate to the permitted
development, and (3) it must be such as a reasonable planning authority, duly
appreciating its statutory duties, could have properly imposed.
Here
restrictions in the terms of the clause 3 obligations did fairly and reasonably
relate to the draft local plan and to planning considerations affecting the
land. The draft local plan, published in February 1986, provided (para AM5)
that the council would refuse permission for houses for agricultural workers unless
it could be shown that they were essential to the future operation of an
agricultural holding, and permission would be subject to the owner entering
into a binding agreement containing restrictions to the effect of the clause 3
obligations in Mr Elves’ agreement. Further, the clause 3 obligations did
fairly and reasonably relate to the permitted development. And I am far from
persuaded that, given the green belt problems confronting them, the council
would not have been acting properly as a reasonable planning authority, duly
appreciating their statutory duties, if they had imposed the clause 3
obligations as conditions attached to the planning permission. They would not
have been acting perversely.
The point can
be tested in this way. If, in 1987, the obligations had been imposed as
conditions and, contrary to the prevailing expectation, they had been upheld by
the minister on appeal, could the conditions have been challenged as outside
the scope of sections 29 and 30? The
answer to that question must surely be ‘no’. But the lawfulness of the
conditions could not depend on whether the minister did or did not in fact
uphold them on appeal.
I recognise
that, if imposed as conditions, the obligations might well not have withstood
an appeal to the Secretary of State. He might well have taken a different view
of the planning ‘merits’ and have reached the contrary conclusion about the
need for these conditions. The minister might even have ordered the council to
pay the costs of the appeal. But that is a far cry from saying that, by
imposing the conditions in the teeth of the recommendations in the circular,
the council would have been acting beyond their statutory powers. Willmer LJ
adverted to this distinction in Hall & Co Ltd v Shoreham-by-Sea
Urban District Council [1964] 1 WLR 240 at p 248:
It remains to
consider the contention that the conditions imposed are so unreasonable that
they should be held to be ultra vires on that ground. In the first place, it is
to be remarked that it is not sufficient merely to say
be the subject for appeal to the Ministry. . . . In order to justify the court
in granting a declaration that the conditions are ultra vires it must be shown
that they are so unreasonable that no reasonable council could have imposed
them.
The plaintiffs
rely heavily on the circulars. But the guidance given by circulars is not
immutable and inflexible. The circulars represent government policy which a
local planning authority can and should properly take into account. But
exceptional cases arise, circumstances change, new difficulties become
apparent. One need look no further than the latest planning policy guidance
(PPG7), issued by the Department of the Environment and the Welsh Office in
January 1992, regarding the countryside and the rural economy. This is
expressed in less absolute terms than Circular 1/85. Implicitly it envisages
the possibility that in some circumstances occupation of a dwelling may be tied
to one specific farm (‘It should not be necessary to tie occupation of the
dwelling to workers engaged in one specific farm . . .’). Explicitly it
envisages that in appropriate circumstances a planning authority may use
planning obligations to tie a farmhouse to adjacent farm buildings to prevent
their being sold separately (paras E16 and E17).
Bypassing
the minister
This
conclusion, that the clause 3 obligations could lawfully have been made the
subject of planning permission conditions, cuts away most of the ground on
which Mr Payton’s presentation of his case rests. It means that he gets no
assistance from the dicta of Lloyd LJ and Kerr LJ cited above. But this
is not quite the end of the matter. There is a further point. It follows from
what I have said that in this case there were two routes which, in law, were
open to the council to attempt to achieve the altogether proper planning
purpose they had in mind: impose conditions, or require Mr Elves to enter into
a section 52 agreement. The council chose the latter route. Their purpose in
choosing that route was to preclude an appeal to the minister in the future. Mr
Elves could have refused to enter into the section 52 agreement. Had he done
so, presumably the council would have refused to grant him permission to build
a house for his pigman. Mr Elves could then have appealed to the minister
against that refusal. But if Mr Elves agreed to enter into the section 52
agreement, and duly did so, enforcement of the clause 3 obligations would then
be in the council’s hands alone. Was this a proper purpose for the council?
There is a
certain lack of attractiveness about a local planning authority deliberately
seeking to bypass the minister in this way. But I cannot accept that in law
this was an improper purpose such as to vitiate the section 52 agreement or to
make the council’s decision liable to be set aside on an application for
judicial review. There were two routes ahead. In preferring the section 52
route, the council were not activated by a non-planning consideration. If the
legislation marked out a route which bypassed the minister, in my view the
council were entitled to elect to follow that route. That was within their
lawful powers. I see no
policy and unlawful for that reason.
As already
noted, this route is no longer open to local planning authorities. Section 52
of the Act of 1971 became section 106 of the Act of 1990. That section has
since been replaced by new sections, sections 106, 106A and 106B, substituted
by the Planning and Compensation Act 1991. These sections provide for persons
interested in land to enter into ‘planning obligations’, by agreement or
otherwise. After the expiry of a period, currently five years, a person against
whom the obligation is enforceable may apply to the local planning authority
for the obligation to be modified or discharged. There is a right of appeal
against the planning authority’s refusal. So, for the future, the law has been
changed. I cannot find in this change in the law justification for reaching a
different view regarding the courses lawfully open to a local planning
authority in the past.
The scope
of section 52
Both parties
addressed submissions to me on the scope of section 52. The council submitted
that whether or not the clause 3 obligations could have been imposed as valid
conditions is irrelevant in deciding whether the section 52 agreement was
valid. My attention was drawn to the origin and legislative history of the
section, and to observations made by Lloyd LJ in Bradford City Metropolitan
Council v Secretary of State for the Environment [1986] 1 EGLR 199,
by Roch J in R v Gillingham Borough Council, ex parte F Parham Ltd
[1988] 1 PLR 7, and by Popplewell J in R v Wealden District Council,
ex parte Charles Church South East Ltd [1989] 3 PLR 42. This is a
much-debated question. Answering it may well call for a review, in the light of
today’s conditions, of some of the authorities and dicta on the matters
which do or do not fall within Lord Scarman’s threefold test in the Newbury
case. This would be a wide-ranging exercise, with (potentially) far-reaching
implications concerning ‘planning gain’. The exercise does not fall to be
undertaken in this case. In view of the conclusion I have already stated, the
question does not arise for decision. However narrowly section 52 is to be
interpreted, the clause 3 obligations fall within the section as an agreement
made with a local planning authority ‘for the purpose of restricting or
regulating the development or use’ of land in the council’s area. As I have
said, these obligations could lawfully have been imposed as conditions.
Accordingly, it is not necessary for me to pursue this point, and I shall not
do so.
In the result
I shall dismiss this action. Mr Elves’ section 52 agreement was not ultra
vires, null or void.
Action
dismissed.
