One area of
concern for many rural practitioners is that of ‘agricultural occupancy’
conditions. These are imposed on planning permissions for new dwellings used in
connection with agriculture and are designed to prevent the later sale of the
dwelling on the open market. For a variety of reasons owners of houses governed
by these conditions may wish to see them removed, but rarely are they
successful. But one recently reported case has shown that even these conditions
have their limitations. Furthermore, the consequences of this decision spread
far wider than agricultural dwellings.
Government
guidance on the suitability of these conditions can be found in Circular 1/85 —
The Use of Conditions in Planning Permissions at paras 80 and 81 and
Annex E to 1992/PPG 7 — The Countryside and the Rural Economy. Both
policy documents contain broadly similar model conditions designed to ensure
that, when an isolated dwelling has been granted permission on the basis that
it is needed to house farm or forestry workers near to their place of work, it
will remain as such and be kept available for meeting this need.
In Handoll
v Warner Goodman & Streat [1995] 1 EGLR 173; [1995] 25 EG 157 the
plaintiffs purchased a bungalow over which it was suggested an agricultural
occupancy condition applied. The bungalow was built in 1978 by the vendors and
both the outline planning permission and the reserved matters approval
contained a condition restricting occupancy to a person solely or mainly
employed or last employed in the locality in agriculture or in forestry or a
dependent or such person residing with him, but including a widow or widower of
such person. The condition followed closely the model condition in Circular
1/85.
The bungalow
which was built was not located in the position suggested in the application
plan, application forms or the detailed drawings. In fact, it was erected some
90ft (27.4m) west of the approved location. It was argued by the plaintiffs
(the purchasers who were suing their solicitor, the vendors and the local
planning authority) in the High Court that the bungalow was not built pursuant to
any planning permission, but that, as operational development, it was immune
from enforcement action having been completed more than four years before the
case came to court. It then followed, it was argued, that the agricultural
occupancy condition could not apply as it was in regard to a permission that
was of no relevance to the bungalow as it had been erected without planning
permission.
Mervyn
Davies J dismissed the plaintiffs’ case, relying upon the decision of the
Divisional Court in Kerrier District Council v Secretary of State for
the Environment (1980) 41 P&CR 284. In that case, a bungalow was
constructed with a basement that had not been shown on the approved plan. That
planning permission also included an agricultural occupancy condition. The court
held that the fact that something was done without planning permission in the
sense that it did not comply with a permission that had been granted did not
mean that the permission had to be treated as a nullity. Thus, if it was not a
nullity there was no reason why the agricultural occupancy condition should not
bite. Lord Lane LCJ stated:
We approach
the question first as a matter of principal. The reasoning of the Secretary of
State comprises four steps: (1) the dwelling-house actually built differed materially
from that shown on the approved plan; (2) therefore, it was built without
planning permission; (3) therefore, the planning permission was never
implemented; (4) therefore, the condition never applied.
Step (1)
involves a finding of fact … Step (2) is well-established law. Steps (3) and
(4) involved, as it seems to us, a non sequitur. When one speaks of
something being done without permission, it may mean one of two things. It may
mean that no permission has ever been granted at all, or it may mean that
permission has been granted, but that which has been done has not complied with
that permission. The fact that something is done without permission in the
latter sense does not mean that the permission must be treated as a nullity,
and if it is not a nullity, we see no reason why any condition the subject of
which permission has been given should not bite … In one sense, the planning
permission plainly was implemented since without the planning permission the
house would never have been built at all. Having relied on the permission to
build the house, it would seem strange that the occupiers should not be bound
by the condition, particularly if it was by reason of their own default that
the plans were not complied with. If the house had complied with the plans, the
occupiers would have been bound by the condition. They can hardly be in a
better position because the house did not comply with the plans. Two blacks do
not make a white in this or any other branch of the law.’
It was not
surprising that Mervyn Davies J felt that, while it was argued that the Kerrier
case was distinguishable on the basis that the departure from the approved
drawings in that case related only to the interior of the building, whereas the
present case involved a house which was built some 90ft away from its approved
location, it was not a distinction in principle, and he thus held that the
agricultural occupancy condition applied.
The
plaintiffs successfully appealed to the Court of Appeal. The reasoning advanced
by the plaintiffs’ counsel was endorsed by the court. He referred to various
features of the statutory framework. First, if the building is constructed
without planning permission then the use of the building is also not permitted.
Second, it is important for the applicant to identify the land to which the
permission relates for the purposes of completing the relevant ownership
certificate and for the fact that any permission enures for the benefit of the
land. Consequently, it is the effect of the permission and not the intention of
the parties that is the important consideration. For that reason, the statutory
planning register is maintained by local planning authorities.
Third, if a
planning permission does not apply, then neither could a condition by which it
was granted.
The Kerrier
decision was then criticised. It was argued that two important and relevant
previous cases were not referred to in the judgment (although it was not known
for sure whether they were cited to the court) although, for the purposes of
these notes, it is not necessary to go into the detail of these cases. However,
one of the cases established the point that planning authorities cannot succeed
with enforcement action against breach of conditions unless the development to
which it was attached by the planning permission has been carried out.
Furthermore, it was argued that works which do not comply with the permission
and any conditions to which it is subject do not constitute the implementation
or commencement of a planning permission. A permission is not implemented when
something is done that the permission does not authorise merely because it
would not have been done if permission had not been granted. In this respect,
the decision of the Court of Appeal in FG Whitley & Sons Co Ltd v Secretary
of State for Wales [1992] 3 PLR 72 was pertinent and, in particular, a
passage from the judgment of Woolf LJ:
As I
understand the effect of the authorities to which I am about to refer, it is
only necessary to ask the single question: are the operations (in other
situations the question would refer to the development) permitted by the
planning permission read together with its conditions? The permission is
controlled by and subject to the conditions. If the operations contravene the
conditions they cannot be properly described as commencing the development
authorised by the permission. If they do not comply with the permission they
constitute a breach of planning control and for planning purposes will be
unauthorised and thus unlawful. This is the principle which has now been
clearly established by the authorities. It is a principle which I would have
thought made good sense since I cannot conceive that, when section 41(1) of the
1971 Act made the planning permission deemed subject to a condition requiring
the development to be begun by a specified date, it could have been referring
to development other than that which is authorised by the permission.’
The Court of
Appeal accepted these submissions and allowed the appeal. It recognised that
there was a fear that a wrongdoer might profit in these circumstances, but that
in reality the wrongdoer would be worse off because he has no permission to
erect the building and would be susceptible to enforcement action.
The
implications of this case are quite significant. While it concerned an
agricultural occupancy condition, there is no reason to suppose that other
forms of development and other types of condition would not be caught by this
ruling. While only developments that do not comply in a material respect or to
a material extent with the planning permission which has been granted will fall
foul of this ruling, it begs the question of where is the boundary of
materiality to be drawn? On this the court could provide no guidance other than
that which can be inferred from the facts. From the point of view of the local
planning authority it will be necessary, in theory at least, for them to check
developments closely to see that they comply with the planning permissions that
have been granted authorising them. Furthermore, the fear acknowledged by the
Court of Appeal that a wrongdoer may profit was perhaps underplayed.
