Town and Country Planning Act 1971 — Appeals against decisions of Secretary of State raising points of general interest as to the need for planning permission where land is used in connection with horses — Planning authorities said to be concerned about proliferation of uses of small areas of land for schooling horses, teaching young riders, practising for gymkhanas and other recreational activities connected with horses — Judgments seek to clarify position — Although the use of land as grazing land, being a use for ‘agriculture’, is not subject to planning control, even if the use is for the grazing of ‘non-agricultural horses’ (ie horses used for recreation), it is necessary to define what is meant by such use — The use must be for the purpose of grazing — Grazing must be the predominant or substantial use — Incidental grazing by horses fed otherwise would not be enough — Common sense rather than reference to legal precedents should be the guide for inspectors and planning officers — In the main appeal the finding of fact that the land was used for grazing could not be attacked — Point raised in other appeal as to need for clarity and precision in enforcement notice — Appellant was admittedly using land only for exercising ponies, not for grazing, but notice required him to desist from using the land as ‘a paddock’ — Notice ambiguous — Strictly speaking, the concept of a paddock is merely that of an enclosure, not a use — In any case, interpreted as a use it could have meant use for grazing, which was not a breach of planning control, just as easily as use for the keeping of ponies — Planning authority’s appeal on the grazing point dismissed — Landowner’s appeal on enforcement notice point allowed
The
first-named appeal was by David John Sykes against the Secretary of State and
the South Oxfordshire District Council as respondents, the issue being the
validity of an enforcement notice served by the second respondents. In the
second-named appeal the South Oxfordshire District Council as appellants
challenged a decision of the Secretary of State that, in view of a finding of
fact that land was used for grazing of horses, there was no breach of planning
control. It was argued on behalf of the planning authority that the grazing did
not escape planning control unless the horses were themselves used for
agricultural purposes. The respondents to this appeal were the Secretary of
State and Timothy B Underwood, Elizabeth Underwood and Peter Brian Lance.
D E W Turriff
(instructed by Bircham & Co) appeared on behalf of David John Sykes in the
first-named appeal and on behalf of Timothy B Underwood and Elizabeth
Underwood, respondents in the second-named appeal; Simon Brown (instructed by
the Treasury Solicitor) represented the Secretary of State in both appeals; D N
R Latham (instructed by Sherwood & Co, agents for J B Chirnside, chief
executive and solicitor, South Oxfordshire District Council) represented the
council in both appeals.
Giving
judgment, DONALDSON LJ said: Today we have been concerned with two appeals
against decisions of the Secretary of State in his planning jurisdiction. Both
appeals have something in common in that they raise the question of whether and
to what
connection with horses which are themselves kept for recreational purposes.
Both cases
arise in South Oxfordshire. The exact details of the appeal sites are
irrelevant for present purposes. In the case of Mr and Mrs Underwood they kept
three racehorses, two point-to-point horses, a driving pony, two family ponies
and one retired mare which had been badly injured, all on the 2 1/2 acres of
land concerned. In the case of Mr Sykes, he kept two show ponies on his rather
smaller piece of land.
The Underwoods
were successful in their appeal to the Secretary of State, who took the view
that what they were doing, as found by the inspector, did not constitute a
breach of planning control. In the case of Mr Sykes, he reached the opposite
conclusion. In the case of the Underwoods the South Oxfordshire District
Council appeals and in the other case Mr Sykes is the appellant.
Let me put Mr
Sykes’ appeal on one side for the moment because he is only concerned with the
second of the two points which arise in the Underwood appeal. He cannot contend
in his case that what he was doing was a permitted development because it has
been found that he was not using the land for grazing purposes in any way at
all. He was using it merely for exercising the ponies. He has, however, a point
on the form of the notice to which I will return.
In Mr and Mrs
Underwood’s case, as I say, the Secretary of State took the view that no
planning permission was needed because there was no breach of planning control
in the use which they were making of their land, and it is that point which I
think has to be examined and it is that point which is of general interest, as
I understand it, to the Secretary of State and to planning officers throughout
the country.
The matter
starts with section 22(2)(e) of the Town and Country Planning Act 1971, which
provides:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land, that is to say– . . . (e) the use of any land
for the purposes of agriculture . . .
I think I can
omit the rest of the words as being immaterial for present purposes.
‘Agriculture’
is defined, somewhat indigestibly, in section 290(1) of the Act as follows:
‘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.
The Secretary
of State in his decision letter [Ref APP/5355/C/77/5117 dated May 15 1980]
dealt with Mr Underwood’s appeal in the following terms. He said:
In regard to
ground (b) of the appeal against Notice A, it was argued on behalf of your
clients, citing the judgment of the Court in Rutherford v Maurer
[1962] 1 QB 16 and McClinton v McFall (1974) 232 EG 707, that the
use of the appeal site for the grazing of horses was an agricultural use and, as
such, did not amount to development within the meaning of the 1971 Act. The
inspector found as facts, which are accepted, that Mr Underwood, purchased the
appeal site in 1975 and, since then, it has been used for grazing his horses as
an alternative to their accommodation in the stable buildings at ‘The Well
House’. There was no evidence to show that the site had been used for any other
purpose in connection with these horses.
The Secretary
of State’s decision letter continued:
The inspector
concluded: ‘Site A is a well defined field. Although now open to the extreme
rear part of the land purchased as the property ‘The Well House’, that area is
not embraced by Notice A and is physically separated from the land containing
the buildings concerned in Notice B. Site A should therefore be considered as
an isolated planning unit.
‘The judgment
given in Belmont Farm Ltd v Minister of Housing and Local Government
(1962) 13 P & CR 417 was concerned with land and buildings which as a whole
were used as a stud farm, a situation not pertaining at Site A.
‘The other
two cases cited by the appellant’s advocate, McClinton v McFall
and Rutherford v Maurer, although not concerned with planning
law, were concerned with circumstances very similar to those of Notice A. In
both cases the courts appeared to have had no doubt that the grazing of land by
horses, whatever the purposes of those horses, came within a definition of
agriculture similar to that given in section 290 of the 1971 Act.
‘Following
those last two judgments rather than that given in Belmont Farm Ltd v Minister
of Housing and Local Government, as Site A has only been used for the
grazing of horses, which can aptly be described as use for the purpose of a
horse-paddock and which comes within the definition of agriculture, no
development requiring planning permission has occurred by reason of section
22(2)(e) of the 1971 Act, and the appeal succeeds on ground 88(1)(b).’
The Secretary
of State continued:
These
conclusions have been considered. The inspector’s view that Site A is a
separate planning unit is accepted, subject to the qualification that that unit
is seen as including parts of ‘The Well House’ land to the north of the fence,
behind the stables. Though occupied with the remainder of ‘The Well House’ land
— comprising the house and its curtilage, including the stables — Site A,
together with that northern part of ‘The Well House’ land is seen as being a
separate planning unit, as a physically distinct area which has a separate use;
namely for grazing horses. Following the inspector’s view of the matter, it is
further considered that, as a ‘use of land as grazing land’, this use is within
the definition of ‘agriculture’ in section 290(1) of the 1971 Act and that, by
virtue of section 22(2)(e) of that Act, it is consequently a use which is not
to be taken as involving the development of land. From this it follows that the
introduction of that use did not constitute a breach of planning control, and
the appeal succeeds on ground (b).
Mr Latham for
the South Oxfordshire District Council submits that this is wrong and that,
properly construed, section 22(2)(e) does not permit the use of land for the
grazing of horses unless those horses are themselves being used for
agricultural purposes. If you have, for instance, a carthorse, you could graze
that on the land assuming that the carthorse would be used for agricultural
purposes, although one can of course use carthorses for other purposes. On the
other hand, horses which are used purely for recreational purposes are not, he
submits, within the definition. If you read the definition literally that
clearly is not correct. But Mr Latham relies heavily upon the decision of this
court in Belmont Farm Ltd v Minister of Housing and Local Government
(1962) 13 P & CR 417.
In that case
this court was concerned with a different limb of the definition, namely, the
words ‘keeping of livestock’ with its parenthetical qualification relating to
creatures kept for the production of food, wool, skins or fur, or for the
purpose of its use in the farming of land. This court held that, taking account
of that parenthesis, the words ‘keeping of livestock’ had to be restrictively
construed and did not cover the keeping of horses for purposes other than
agricultural purposes. In Mr Latham’s submission, the same approach should be
adopted in relation to the words ‘use of land as grazing land’.
For my part, I
see no reason why the words should be construed restrictively in that way.
There are no qualifying words such as exist in relation to the words ‘keeping
of livestock’. There are no such qualifying words as exist at the end of the
definition in relation to the use of land or woodlands. It is thus quite clear
that, if Parliament had intended to qualify the apparent width of the words
‘use of land as grazing land’, it could have done so, and I see absolutely no
reason why we should imply any such limitation.
The whole of
the decision in the Belmont Farm case, as appears from the judgment of
Lord Parker CJ, turned upon the qualifying words and what was to be implied
from them. There is nothing, as I see it, in that judgment which would have any
application to the words with which we are concerned. Accordingly I would give
them their natural meaning. As it seems to me, faced with the inspector’s conclusion
of fact that this land — the Underwoods’ land — was used for the grazing of
horses, the Secretary of State’s decision was wholly correct.
The form of
the notice of appeal does not permit Mr Latham to attack the findings of fact,
and indeed he might have had some difficulties in view of the semi-sacrosanct
nature of findings of fact in this field. But it is, I think, fair to say that
the Underwoods may perhaps have been fortunate in their findings of fact in
this case because it is not, as I see it, every grazing of land by horses which
enables an owner of land to say that he does not need planning
the land, and I substitute the relevant part of the definition, for the purposes
of using that land as grazing land. The concept of there being more than one
cause or more than one purpose is well known to the law.
What an
inspector in these circumstances has to decide is: what was the purpose
— and I stress the word ‘the’ — for which the land is being used? If horses are simply turned out on to the
land with a view to feeding them from the land, clearly the land is being used
for grazing. But if horses are being kept on the land and are being fed wholly
or primarily by other means so that such grazing as they do is completely
incidental and perhaps achieved merely because there are no convenient ways of
stopping them doing it, then plainly the land is not being used for grazing but
merely being used for keeping the animals. On the other hand, of course, if the
animals are put on to a field with a view to their grazing and are kept there
for 24 hours a day, seven days a week over a period, it would not, I would have
thought, be possible to say that as they were being kept there, they were not
being grazed. It is quite possible for horses to be both grazed and kept in the
same place.
The
predominant question here is: what use was being made of the land? Was it for the purpose of grazing? I do not find any particular difficulty in
deciding what is a predominant use. To take an example which I mentioned in
argument, if somebody goes to a restaurant and smokes after the meal they do
not go to the restaurant in order to smoke; they go for the meal. There is no
difficulty about that. I cannot see any difficulty in most cases in recognising
whether the land is being used for grazing or for the keeping of
non-agricultural horses. It is only if it is being used for the purpose of
grazing that no planning permission is required.
Let me now
turn to the second problem, which arises out of the fact that in the case of
the Underwoods’ enforcement notice they were required to desist from using the
land as ‘a horse paddock’, and in the case of Mr Sykes’ enforcement notice he
was required to desist from using the land as ‘a paddock’. It is unnecessary to
say anything about the Underwoods’ case since, as I have already said, I would
support the Secretary of State’s decision in allowing the appeal. Therefore
that notice is dead. But as far as the Sykes’ notice is concerned, it is
crucial because this is the only ground upon which he can have the Secretary of
State’s decision set aside.
For my part, I
think that he is entitled to have it set aside. I say that for this reason.
Section 87(6) of the Act provides:
An
enforcement notice shall specify — (a) the matters alleged to constitute a
breach of planning control; (b) the steps required by the authority to be taken
in order to remedy the breach . . .
It follows
from that, and indeed there is ample authority to support the proposition, that
there must be a clear indication to the addressee of the notice as to what it
is that he is doing wrong and what he must do in order to stop doing it. Both
those propositions call for some clarity of expression on the part of those who
prepare the enforcement notice. To require somebody to stop using land as a
paddock seems to me to be wholly lacking in any clarity whatever. It is open,
to start with, to the comment that you do not use land as a paddock; it either
is or is not a paddock. A paddock is not a concept of use at all; it is a
concept perhaps of enclosure. But Mr Brown says that in this context it must
mean ‘for the keeping of horses’. It seemed to me that it could equally well
mean ‘for the grazing of horses’, which is not a breach of planning control at
all. It is a thoroughly unsatisfactory term, and as it is ambiguous as well as
being unsatisfactory I think that the section is not complied with. In the case
of Mr Sykes’ appeal, too, I would allow the appeal and remit the matter to the
Secretary of State for further consideration.
Agreeing,
KILNER BROWN J said: With regard to the question of principle which this court
was asked to consider, it seems to me that in this situation, as we are told
and it may well be so, there is growing anxiety felt by a number of local
authorities as to the proliferation of small areas of land used for the purpose
either of keeping horses for recreational purposes or alternatively for using
them for schooling or for teaching young riders, particularly in the more
difficult art of show jumping and performing in gymkhanas. But in the end it is
always a question of common sense. I would have thought that planning officers
in the first place should apply the sort of test which my Lord has indicated
and to see really what is the land used for, and, as Mr Brown for the Secretary
of State rightly said, you look to see what is its substantial use. It is easy
enough to detect the situation where a piece of land — a paddock, a small
meadow, call it what you like — is simply used for the purpose of schooling
horses or training young riders. The amount of grazing which occurs on that
land is merely incidental while each horse and rider is waiting his or her turn
to be trained. On the other hand, there may be, as the inspector found in the
case of the Underwoods, normally speaking a degree of actual and substantial
grazing which was carried out.
Again I would
deprecate the use of reference to authorities such as those which were cited
before the inspector. In view of the judgment given by my Lord, I would hope
that henceforth inspectors and planning officers would be able to approach the
growing problem using their common sense, assessing each situation upon the
facts as they appear to be. Having said that, I agree with the judgment of my
Lord.
The appeal by
Mr Sykes was allowed with costs against the district council. The appeal by the
district council against the Secretary of State and others was dismissed with
costs.
