Town and Country Planning Act 1971, section 246(4) — Ex parte application for leave to appeal from a decision of Stuart-Smith J, who had dismissed an appeal from a decision of the Secretary of State upholding two enforcement notices served on the applicant — The enforcement notices alleged a material change in the use of agricultural land by the use of grain silos for the storage of grain not grown on the particular agricultural unit to which the notice related — The applicant occupied agricultural land (some as owner and some as tenant) in different areas which were near to each other, but not completely contiguous, eg in one case about two miles from another of his farms — The present dispute had narrowed down to the position created by the storage of grain produced on the applicant’s land and stored on two of his farms but not intended to be used for the feeding of livestock at those farms — The difficulty was that the planning authority and the Secretary of State had treated the applicant’s holding as divided into different planning units and had decided that ‘the bringing in of grain from other parts of the holding to the planning unit under consideration and its storage there for purposes unconnected with agriculture on the planning unit is a use for storage in itself and not a use for agriculture’ — Stuart-Smith J had upheld this ruling — In applying for leave to appeal (in accordance with section 246(4) of the 1971 Act) it was urged that if, as in this case, there were areas sufficiently close to one another, albeit not contiguous, to be conducted as one agricultural holding, then they are one agricultural unit and whatever is carried on there is use for the purpose of agriculture and does not constitute development — On this view the question whether there is one planning unit is irrelevant — It was also submitted that the Secretary of State erred in law in holding that he was entitled to regard the planning unit as being something smaller than the totality of the agricultural holding — In refusing leave to appeal Glidewell LJ said that it was a question of fact whether land forms part of one agricultural unit or not and it was also a question of fact and degree for the planning authority and the Secretary of State to decide what constitutes an appropriate planning unit — Observations on ‘planning unit’ as ‘a useful piece of shorthand’ in South Staffordshire District Council v Secretary of State for the Environment referred to — Stuart-Smith J’s decision correct — Leave to appeal refused
The following
cases are referred to in this report.
Hancock v Secretary of State for the Environment and Torridge District
Council [1987] JPL 360
South
Staffordshire District Council v Secretary of
State for the Environment and Bickford [1987] JPL 635, DC
This was an ex
parte application by Richard Mackney Fuller for leave (required by section
246(4) of the Town and Country Planning Act 1971) to appeal from a decision of
Stuart-Smith J dismissing an appeal from a decision of the Secretary of State
for the Environment upholding two enforcement notices served on the applicant
by Dover District Council in relation to grain silos installed by the applicant
on farms which formed part of the 2,000 acres which he farmed in Kent near
Dover. The decision of Stuart-Smith J is reported at (1987) 283 EG 847.
Barry Payton
(instructed by Marsland & Barber, of Margate) appeared on behalf of the
applicant.
Giving
judgment, GLIDEWELL LJ said: The applicant, Mr Fuller, is a farmer. Quoting
from the judgment of Stuart-Smith J:
He farms over
2,000 acres in Kent near Dover. Some of the land is owned by him, the rest he
holds as a tenant. There are two main areas of land; the largest is at Sutton
Court Farm (which includes Langdon Abbey and Langdon Court Park) and the
surrounding area;
and I
interpolate the whole of that is more or less contiguous, though not completely
contiguous
the next
largest is at Walmer Court Farm, separated from Sutton Court by about two miles
as the crow flies. In addition to this there are a considerable number of other
areas, varying from a few acres to some 300 acres (the latter being acquired
after service of the enforcement notices).
The applicant
has built, I believe, nine grain silos with drying facilities at Sutton Court
Farm and a smaller similar installation at Walmer Court. In 1984 the respondent
district council served two enforcement notices relating to the use of these
storage installations for the storage of grain. Notice A, as it was called, was
served on May 15 1984 and it related to a restricted area of land at Sutton
Court Farm on which the silos actually stand. The development alleged in that
notice was the ‘making of a material change in the use of the land to use for
the purpose of agriculture and of the commercial storage of grain not grown on
the agricultural unit comprising Sutton Court, Langdon Abbey, Langdon Court and
Walmer Court Farms’, and the notice required that use to be discontinued.
Notice B,
served on July 3 1984, related to the whole area of Sutton Court, Langdon
Abbey, Langdon Court and Walmer Court Farms. The alleged development was ‘the
making of a material change in the use of the land and premises to use for the
purpose of agriculture and of the commercial storage of grain not grown on the
agricultural unit comprising Sutton Court, Langdon Abbey, Langdon Court and
Walmer Court Farms’, and the notice required that use to be discontinued.
The applicant
appealed against both enforcement notices on most of the grounds in section
88(2) of the Town and Country Planning Act 1971. After receiving the report of
an inquiry conducted by an inspector on his behalf, the Secretary of State
amended both enforcement notices to allow more time for compliance, but
otherwise upheld them and refused planning permission for what he found to be
the development. The applicant appealed against that decision under section 246
of the 1971 Act. On May 22 of this year Stuart-Smith J dismissed that appeal.
The applicant now applies for leave to appeal against that decision, being
required to do so by subsection (4) of section 246.
In his
judgment the learned judge categorised the purposes for which grain stored at
Sutton Court and Walmer Court was so stored. First, he referred to grain
produced on the appellant’s own land and he said: ‘This may be either (a) grain
produced on Sutton Court or
some words, ‘(b) grain produced elsewhere than at Sutton Court or Walmer Court
but stored respectively at those farms and used for the purposes of agriculture
at those two farms, for example in the feeding of stock there.’
I break off to
say that the judge found — and, in my respectful view, found entirely correctly
— that the storage of grain for either of those purposes was within the meaning
of ‘agriculture’ within the Town and Country Planning Act 1971 because, if not
part of the principal use, it was certainly ancillary to the use of the land
for agriculture and, therefore, there could be no question of the use of the
land for such storage constituting development.
The third
category of grain produced on the appellant’s own land is ‘(c) grain produced
elsewhere than at Sutton Court and Walmer Court Farm but stored respectively at
those farms’.
Category 2 is
drying and storage of grain produced by neighbouring farmers; 3 is possible
storage incidental and ancillary to the business of a corn merchant, at one
time carried on by the appellant or his predecessors at Northbourne Farm, which
is some distance from both Sutton Court and Walmer Court; 4 is storage of grain
under Grade and Feed Trade Association agreement, and 5 is what is called
intervention storage.
The effect of
the Secretary of State’s decision (which was upheld by the judge) was that only
storage for purposes 1(a) and 1(b) did not constitute development and that
storage for all the other purposes I have enumerated did constitute development
as being not use of the land for the purposes of agriculture and thus was
caught by the enforcement notice. So far as the storage of grain under the
GAFTA agreement and for intervention purposes is concerned, that decision is
accepted by the applicant and so the area now in dispute is narrowed, and
particularly relates to the storage of grain produced on the appellant’s land
at Sutton Court and Walmer Court Farms, stored at those farms but not intended
to be used for the feeding of livestock at those farms. In other words, grain
within category 1(c) in Stuart-Smith J’s categorisation.
The parties at
the hearing of the inquiry were apparently in agreement (according to the
inspector) that it was right to treat all the land occupied as an agricultural
holding by Mr Fuller as if it were one agricultural unit and possibly one
planning unit. The Secretary of State disagreed with that, and it is his
disagreement with that which is really the subject of challenge both before
Stuart-Smith J and as the basis of this present application. The Secretary of
State said:
The question
which will first need to be decided in these appeals is whether or not any
material change of use of land has occurred in breach of planning control. That
is a question of fact and degree which cannot be considered in a vacuum: it can
only be considered in the context of the relevant planning unit or units.
and he then
went on to decide, upon the evidence as a matter of fact, that realistically
Sutton Court, including Langdon Abbey and Langdon Court, could properly have
been considered to be one planning unit and Walmer Court, some two miles
distant, a separate planning unit. But he said, in effect, ‘I cannot follow the
logic of that view through because to do so would make the enforcement notice
even more stringent than it is already, and I am not allowed to do that. The
planning authority, in their Notice B, had treated as one planning unit Sutton
Court with its adjacent farms and Walmer Court together and so I must do so
too. But they do constitute one planning unit (this is the effect of his
decision) and anything outside those areas, albeit forming part of the total
holding farmed by Mr Fuller, is not within the planning unit and therefore the
bringing in of grain from other parts of the holding to the planning unit under
consideration and its storage there for purposes unconnected with agriculture
on the planning unit is a use for storage in itself not a use for agriculture
and, therefore, constitutes development.’
That is the
logic of the Secretary of State’s decision, and it is that logic which Mr
Payton seeks to challenge. It is the logic which the learned judge has upheld.
Mr Payton has,
if I understand him correctly (as I hope I do), two main arguments. The first
is that an agricultural unit is, broadly speaking, the area of land occupied
and farmed by one farmer at any one time, provided that its parts are not
separated so distantly that he cannot realistically farm the whole as one
operation. He accepts — to use my absurd example — that if a farmer occupies
land in Kent, Cornwall and Northumberland he would be hard put to it to describe
them all as forming part of one agricultural unit, because his management of
them could not be conducted day to day or even week to week as one activity.
But, he says, if you have areas sufficiently close to each other, albeit not
contiguous, to be conducted as one agricultural holding, then they are one
agricultural unit. Second, he says, if that be so, then whatever is carried on
there is use for the purposes of agriculture and does not constitute
development by reason of section 22(2)(e) of the 1971 Act, and the question
whether there is one planning unit is nothing to the point. Or, to put it
another way, the unit to which the enforcement notice should relate must be the
whole of the agricultural unit, that is to say the whole of the agricultural holding,
and the Secretary of State is wrong to have restricted the phrase ‘planning
unit’ to something smaller than the agricultural holding.
There is no
general definition of ‘agricultural unit’ in the Town and Country Planning Act.
There is a definition in section 207, but that is only for the purposes of that
part of the Act which relates to purchase notices, which is not in issue here.
The most helpful definition to which Mr Payton referred me is in section 109 of
the Agriculture Act 1947, which in subsection (2) describes ‘agricultural unit’
as follows:
means land
which is occupied as a unit for agricultural purposes, including — (a) any
dwelling house or other building occupied by the same person for the purpose of
farming the land, and (b) any other land falling within the definition in this
Act of the expression ‘agricultural land’ which is in the occupation of the
same person, being land as to which the Minister is satisfied that having
regard to the character and situation thereof and other relevant circumstances
it ought in the interests of full and efficient production to be farmed in
conjunction with the agricultural unit, and directs accordingly.
So it becomes
a question of fact for the minister, even under that definition, to decide
whether land forms part of one agricultural unit or not.
But the major
attack which Mr Payton launches is on the second item of the Secretary of
State’s decision, that he can decide on what is a planning unit and choose
something which may be more restricted than the whole of an agricultural
holding. Mr Payton says, as a matter of law, that that is wrong.
In the very
recently published decision of the Divisional Court — not, of course, binding
on the Court of Appeal — in South Staffordshire District Council v Secretary
of State for the Environment and Bickford (which is reported in the Journal
of Planning and Environment Law for September 1987 at p 635) I, giving the
judgment of the court, said that the phrase ‘planning unit’
is a useful
piece of shorthand to describe the area of land or part of a building or group
of buildings to which a local planning authority should properly have regard
when considering whether there has been a ‘material change of use in the use of
any buildings or other land’.
I adhere to
that; that is what the phrase — which, of course, is not to be found in the Act
or regulations — means. I do not think Mr Payton would dissent from that. The
question is whether there is an argument at law that in the context of a use
for the purposes of agriculture the Secretary of State is in effect bound to
regard one agricultural holding, which consists of a number of pieces of land
separate geographically but farmed as one business, as one planning unit. If he
is, then all the activities going on on that unit for agricultural purposes are
uses for the purpose of agriculture, and so storage of grain produced in any
part of that holding or any other part would be within the meaning of the word
‘agriculture’.
I can find no
warrant for Mr Payton’s submission that as a matter of law the Secretary of
State was wrong to say that he was entitled to regard the planning unit as
being something smaller than the totality of the agricultural holding. It is a
question of fact and degree, first for the planning authority and later for the
Secretary of State, to decide what constitutes an appropriate planning unit,
and I do not accept that the concept does not apply in a situation such as
this.
Mr Payton also
argues that his client is going to be disadvantaged because in a recent decision
of November 28 1986 in Hancock v Secretary of State for the
Environment* Hodgson J decided that in a case in which a farmhouse was
separated by some little distance from the land farmed by the farmer occupying
the farmhouse, nevertheless the whole could properly be treated as both one
agricultural unit and one planning unit. Mr Payton argues that since that
decision is under appeal by the Secretary of State, his client should be
allowed to appeal also so as to add weight to the defence by the respondent, Mr
Hancock, to his appeal and if that defence succeeds Mr Payton
proposition that I respectfully disagree. Even if Mr Hancock succeeds (as he
may well, even without the support of Mr Payton and his instructing
solicitors), the proposition that it is proper to treat as one unit an area
consisting of a piece of land separated by a short distance — because it was a
short distance in that case — from the farmhouse and its immediately adjacent
paddock seems to me to be not helpful in relation to the question whether a
holding consisting in a number of disparate pieces of land, some of them
separated from each other by several miles, can properly be considered to be
one unit.
*Editor’s
note: see [1987] JPL 360.
For those
reasons I am quite satisfied that the decision to which Stuart-Smith J came was
correct and I refuse leave to appeal.
Application
for leave to appeal was refused.