Town and country planning — Application to remove agricultural occupancy condition — Whether circumstances at date condition imposed relevant
The second
respondent appealed against an enforcement notice requiring him to cease using
a dwelling-house contrary to an occupancy condition imposed with the grant of
planning permission for the erection of the building in 1981. In deciding to
grant planning permission on the deemed application arising on the appeal, the
inspector concluded that the occupancy condition had not been appropriately
imposed in the first place. The applicant challenged that decision on the
grounds that: (1) the inspector was not entitled to consider the history and
surrounding circumstances of the original permission; (2) he had failed to
consider current circumstances; and (3) the inspector had failed to give clear
and adequate reasons. The respondent, the Secretary of State for the
Environment, contended that the applicant, who was the owner of some adjoining
land, was not a person aggrieved and entitled to make the application.
inspector’s finding that the condition was inappropriately imposed was a
finding that there was no agricultural or forestry need for the condition and
that he was therefore entitled to look into the facts and circumstances of the
original grant of permission. However, (2) the question whether the occupancy
condition should be retained in 1993 must be answered by the reference to the
facts and circumstances prevailing in 1993. (3) Although the inspector adopted
an incorrect test, his reasons were adequate. (4) The applicant was a person
aggrieved for the purposes of section 288 of the Town and Country Planning Act
1990, because he was the owner of land over which the second respondent claimed
to have an access to the subject property.
The following
cases are referred to in this report.
Chris
Fashionware (West End) Ltd v Secretary of State
for the Environment (1980) 256 EG 1009, [1980] 2 EGLR 151; [1980] JPL 678
Gill v Secretary of State for the Environment [1985] JPL 710
Gwillim
(Leslie) v Secretary of State for the
Environment and Ashford [1988] JPL 263
Kates v Jeffrey [1914] 3 KB 160
Sevenoaks
District Council v Secretary of State for the
Environment unreported, May 26 1994
Turner v Secretary of State for the Environment (1973) 72 LGR 380;
28 P&CR 123; [1973] EGD 1094; 228 EG 335
This was an
application under section 288 of the Town and Country Planning Act 1990 by
William Bannister against a decision of the first respondent, the Secretary of
State for the Environment, by his inspector, who granted planning permission on
appeal against an enforcement notice served on the second respondent, R F
Fordham.
Robert Fookes
(instructed by Saunders Sobell Leigh & Dobin) appeared for the applicant;
David Holgate (instructed by the Treasury Solicitor) represented the first
respondent; the second respondent did not appear and was not represented.
Giving
judgment, MR DAVID WIDDICOMBE QC said: This is an application under
section 288 of the Town and Country Planning Act 1990 to quash the decision of
an inspector acting on behalf of the Secretary of State for the Environment
whereby he granted planning permission for the retention of a bungalow at
Church Wood Farm, Church Lane, Northiam, East Sussex, without complying with
agricultural occupancy conditions imposed when the bungalow was built, on the
permission itself and on the approval of reserved matters.
The permission
was granted by the inspector on the deemed application for planning permission
which arises under section 177(5) of the 1990 Act on an appeal against an
enforcement notice. The enforcement notice had alleged breach of the
agricultural occupancy conditions. The appeal was on grounds (b) and (d) of
section 174(2) of the 1990 Act; that is to say, on the grounds that the matters
alleged in the notice had not occurred and that the notice was outside the
time-limits in the Act. Both these contentions were rejected by the inspector.
Although there was no appeal under ground (a) (planning permission should be
granted), section 177(5) states that in an appeal against an enforcement notice
there is deemed to be an application for planning permission in respect of the
matters stated in the enforcement notice as constituting a breach of planning
control. The inspector granted planning permission pursuant to this provision.
In a case where planning permission is granted on an enforcement notice appeal,
it is possible to apply to this court under section 288 instead of section 289
of the Town and Country Planning Act 1990. That was laid down in Gill v Secretary
of State for the Environment [1985] JPL 710.
At the hearing
in this court there was some discussion by counsel of the technicalities of
sections 174 and 177 of the Act in relation to the procedure for granting
permission in the case of breach of a condition, but both counsel agreed that
such technicalities of construction did not give rise to an issue and I propose
to say no more about them.
The applicant,
Mr William Bannister, is the owner of land adjoining the appeal site. Mr David
Holgate, for the Secretary of State of the Environment, raised the initial
point that he was not a ‘person aggrieved’ for the purposes of section 288 and
therefore not entitled to apply to the court. I will deal with that contention
later.
The inspector
held a local inquiry into the appeal and gave his decision by letter dated
August 17 1993. He described the site and its surroundings and the background
to the appeal as follows:
Site and
Surrounds
4. Church
Wood bungalow is a modest detached bungalow constructed in the early 1980’s. It
lies within open countryside. There is no mains water or electricity supply,
electricity being provided by means of an oil fired generator. The land
associated with the bungalow comprises 11 acres part of which (about 3 acres)
is an old apple and plum orchard the rest being woodland. There is another
larger area of woodland (some 30 acres in extent) which is part of Great
Goteley Wood and which is separated from the land associated with the bungalow.
Background
5. Great
Goteley Wood has been in the ownership of your family since before the war. On
the edge of the wood for many years stood a small timber and corrugated iron
dwelling. This was destroyed by fire in 1980. In 1981 outline planning
permission was granted for the erection of a dwelling to replace that destroyed
by fire but situated at Church Wood. Approval of the matters reserved by the
outline permission was granted on 28 May 1981. Both the permission and the
approval are the subject of the occupancy condition. The bungalow was built in
1981 and occupied by your late father and your mother as their residence. An
application made in 1989, following the death of your father, to remove the
occupancy condition was refused.
He dealt with
the deemed planning application as follows:
The Deemed
Planning Application
18. The
deemed application is for the continued use of the appeal bungalow without
complying with the occupancy condition. In determining this application I
consider the main issues are whether the condition was appropriately imposed
and, if so, whether the retention of the condition remains appropriate.
19. On the
first issue I need to examine the circumstances in which the condition was
imposed. The reports to Planning Committee in 1980 state that ‘the site lies
within an area where the only development normally allowed is that for which
there is an overriding agricultural or forestry need and no such need exists or
is claimed in this case’. The main issues identified in the reports are first
of all whether it was appropriate to permit a new dwelling in substitution for
the one destroyed. The writer of the reports considered that it was appropriate
because ‘there is a strong presumption in favour of a replacement in cases
involving a loss of dwelling’. The second identified issue was whether the
replacement dwelling would be better located in the position chosen by the
applicant (that is the appeal site) rather than the site of the original
dwelling. The writer of the report considered that ‘the original position was
remote, with very poor access across field tracks’. The writer stated that ‘the
position chosen is nearer a metal road, nearer existing dwellings and on a
former smallholding which is capable of being operated as a small agricultural
enterprise’.
20. Members
were recommended to grant planning permission, but subject to an agricultural
occupancy condition. They decided to make a site inspection before coming to a
decision and, at the next meeting, granted permission subject to such a
condition, but also to a section 52 agreement precluding restriction on the
occupancy of the new bungalow to that contained in the occupancy condition.
21. The
council state that although an agricultural or forestry occupancy condition is
normally imposed only in cases of agricultural or forestry need nothing in PPG7
or other relevant guidance suggests that it cannot be appropriate in other
circumstances. They say that although agricultural considerations were not a
major factor in deciding whether permission for a replacement dwelling should
be granted they were critical in influencing the decision to grant permission
on the appeal site rather than at Goteley Wood. They argue, looking at the
matter in the round, that a dwelling of this size and on this site would not
have been permitted but for reasons connected with agriculture/forestry. In
these circumstances, they say, the imposition of an occupancy condition was
appropriate.
22. To my
mind the imposition of an occupancy condition involves a significant
interference in the rights of the individual owner. The normal justification
for an agricultural or forestry occupancy condition is a need to ensure that a
dwelling approved in order to meet agricultural or forestry need is kept
available for those purposes. In this case there was no such need and thus the
normal justification for such a condition was absent. Was there any other
sufficient justification? The previous
use of the appeal site as a smallholding and the possibility of re-use as such
was certainly one (but only one) of the factors which influenced approval of
the location of the bungalow. But the fact that agricultural/forestry
considerations played a part in the decision to approve the bungalow at its
present location does not, in my view, justify a restriction on the occupancy
of the bungalow to those engaged in agriculture or forestry. In my judgment,
the paramount consideration in the decision to grant approval of the appeal
bungalow was the loss of the previous dwelling in Goteley Wood. In those
circumstances the requirement not to rebuild that bungalow (contained in the
section 52 agreement) was fully justified. The imposition of an occupancy
condition was not. I conclude on the first issue that the occupancy condition
was not appropriately imposed.
23. I
appreciate that the appeal bungalow (though of modest size) is considerably
larger than the dwelling it replaced. However, as is clear from the evidence of
Mr Fifield, this is not uncommon where permission is given to replace an older
dwelling. I am not convinced that agricultural or forestry considerations
played a significant part in this respect. I also take into account that your
father complied with the terms of the occupancy restriction. That does not mean
however that the restriction was justified. For the reasons given I consider
that the imposition of this onerous encumbrance was not necessary or reasonable.
24. Having
reached this conclusion on the first issue there is no need for me to consider
the second issue. As the condition was not appropriately imposed in the first
place I consider planning permission should be granted for the retention of the
bungalow without complying with the condition.
25. I have
taken into account all other matters raised with me, in particular, the
representations made by or on behalf of those living nearby. None of these
however outweighs the considerations which have led me to my decision on the
various matters before me.
Mr Robert
Fookes, for the applicant, challenges this decision on three grounds.
(1) Was the original condition ‘appropriately imposed’?
In para 18 the
inspector said that the main issues were whether the agricultural occupancy
condition was ‘appropriately imposed’ and if so whether the retention of the
condition remains appropriate. In para 22 he held that the condition was not
appropriately imposed and in para 24 said that, accordingly, he did not need to
consider the second issue.
Mr Fookes said
that a finding that a condition was not appropriately imposed was a finding
that the condition was invalid as a matter of law. But legal validity was a
matter of construction of the permission, perhaps read together with the
application. In considering the validity, the inspector was not entitled to do
as he had done and delve into the history and surrounding circumstances of the
permission. Those matters were irrelevant to the issue of legal validity.
Further, he had not dealt with the question whether the condition, if invalid,
was capable of being severed from the permission.
Mr Holgate
said that the inspector’s finding that the condition had not been appropriately
imposed was not a finding on the legal validity of the condition, but a finding
that the imposition of the condition was not justified on planning grounds,
there being no agricultural or forestry reason for it.
On this issue
I agree with Mr Holgate. In para 22 the inspector finds that there was no agricultural
or forestry need for the condition when it was imposed in 1980 and that the
paramount consideration was the loss of the previous dwelling in Goteley Wood.
In para 23 he concludes that the imposition of ‘this onerous encumbrance’ was
not necessary or reasonable. The language adopted throughout this part of the
inspector’s decision is the language of planning, not the language of the law.
In approaching it on that basis, he was fully entitled to look into the facts
and circumstances of the original grant of permission.
So this point
of Mr Fookes fails.
(2) Failure to consider current circumstances
This point
concerns the second issue identified by the inspector in para 18, namely
whether the retention of the condition remains appropriate. The inspector took
the view that, because he had found that the condition was not appropriately
imposed in the first place, the second question did not arise.
Mr Fookes said
that, in granting permission in 1993, the inspector was bound to take into
account the circumstances prevailing at that date and that he should have
answered the second question. The cause of the error was the words ‘if so’ in
para 18. If ‘and’ had been used there would have been no problem. He referred
to the judgment of Mr Gerald Moriarty QC (sitting as a deputy High Court judge)
in Sevenoaks District Council v Secretary of State for the
Environment, unreported, May 26 1994.
Mr Holgate
said that in this particular case the inspector was justified in not answering
the second question. It was not suggested by the council at the inquiry that
anything had changed in the planning policies between 1980 and 1993. The Sevenoaks
case was not laying down a general rule.
On this point
I think Mr Fookes is right. The question whether the occupancy condition should
be retained in 1993 must be answered by reference to the facts and
circumstances prevailing in 1993. Mr Holgate may be correct to say that there
had been no material change in the relevant planning policies between 1980 and
1993, but that is not the whole story. The council argued at the inquiry that
the condition was justified by circumstances in 1993, particularly the demand
for agricultural workers’ dwellings. The written proof of their planning
witness, which is before the court, states that the condition was appropriate
in 1980 and then goes on to consider ‘whether current circumstances justify the
continued occupancy of the dwelling without complying with the condition’. The
proof sets out detailed evidence of the current demand for agricultural dwellings,
to show the need for the condition. Further, I note that the reason given by
the council for the issue of the enforcement notice refers to the current
demand for agricultural workers’ dwellings. There was thus a clear issue of
substance raised by the council, which the inspector has left unanswered.
In the Sevenoaks
case, Mr Gerald Moriarty QC had to consider whether to quash an appeal decision
about an agricultural occupancy condition where the inspector defined the
issues using words similar to those used in the present case:
I regard the
main issues in this case to be whether the condition was appropriately imposed,
and if so, whether it has now outlived its usefulness.
And, as in
this case, the inspector found that the disputed condition was not
appropriately imposed and then said:
In the light
of that conclusion, I have not felt it necessary to consider the further
arguments put forward in relation to the need for agricultural dwellings in the
area.
The Sevenoaks
case differs in certain respects from the present case. It was not an
enforcement notice case and the appeal to the Secretary of State was under
sections 78 and 79 of the 1990 Act. The agricultural occupancy condition was
held by the inspector to be invalid as a matter of law and on that he was
upheld by Mr Gerald Moriarty QC. But on the point now under consideration, the
issue appears to me to be the same as in the present case. In Sevenoaks
section 79(1) provided that on an appeal the Secretary of State might deal with
the application as if it had been made to him in the first place. In this case
section 177(5) provides for a deemed application for planning permission in
respect of the matters constituting a breach of planning control. It seems to
me that these provisions give rise to the same issue as to whether current
circumstances have to be considered in determining an appeal.
The following
passage from the judgment of Mr Gerald Moriarty QC at pp19 to 22 of the
transcript deals with this issue:
Turning to
section 73A, Mr Taylor was also correct, in my view, in submitting that the
inspector was required by section 73A to consider the planning circumstances in
1993. Under section 79 and section 73A(1) and (2)(c) he had power to grant
planning permission for development carried out before the date of the
application, without complying with some condition subject to which planning
permission was granted. The purpose of this provision is to enable planning
permission to be given retrospectively for development that does not comply
with some conditions in the relevant permission.
It seems to
me implicit in the inspector’s decision to proceed under section 73A that he
regarded the agricultural occupancy condition as valid until the date of his
decision, but as having been breached. For that purpose, it also seems that he
had treated the personal occupancy condition as ineffective or irrelevant. In
my judgment, the inspector making his determination under section 79 was
required to consider the planning circumstances at the date of his
determination in order to arrive at a decision under section 73A on the grant
of planning permission with or without the agricultural condition. It is clear
that the inspector recognised, in his definition of the second issue in para 4,
that it would ordinarily be necessary to consider the current circumstances to
consider whether the decision had, in 1993, outlived its usefulness. It is
equally clear from para 18 that he did not decide that second issue, because he
had concluded in para 17 that the condition had not been appropriately imposed.
However, the final words at para 17, ‘and should be removed’, do not, in my
view, follow from the conclusion that the disputed condition had not been
appropriately imposed in 1984.
It was
clearly part of the local planning authority’s case that such a condition was
appropriate in 1993, quite apart from its appropriateness in 1984. The effect
of the inspector’s application of section 73A(2)(c) was to lead him to conclude
that it was unnecessary for him to consider the planning authority’s case, and
that he could without considering it grant planning permission free of any
occupancy conditions.
The power
under section 73A(1) and (2)(c) is to grant planning permission ‘for
development carried out before the date of the application . . . (c) without
complying with some condition subject to which planning permission was
granted’. I do not accept that this power allows the grant, without a full
consideration of the current circumstances, of a planning permission for
development without complying with what was by implication an effective
condition up to that date unless the inspector has considered and applied to
the development the proper considerations in relation to the imposition in 1993
of an occupancy condition. In this case, it did not follow, in my view, from
the inspector’s conclusion as to validity, that no such condition would be
appropriate in 1993.
I fully agree
with this conclusion of Mr Moriarty.
So two cases
have now come before this court in which the ‘if so’ test was adopted by the
inspector. Neither counsel in the present case has been able to find any
departmental guidance which uses this test and it is a mystery where it comes
from.
This point of
Mr Fookes therefore succeeds.
(3) Clear and adequate reasons?
Mr Fookes’
third point is that the inspector failed to give clear and adequate reasons as to
why he adopted and applied the issues he defined in para 18 of the decision
letter.
This is tied
up with Mr Fookes’ contention that the inspector had found the condition to be
unlawful. If it was unlawful, says Mr Fookes, there was no need for a grant of
planning permission without the condition. There never was a condition. The
inspector did not give reasons to explain what he had done.
As I have
found against Mr Fookes’ contention that the inspector found the condition to
be unlawful, this point does not arise. But I have considered generally whether
the inspector’s reasoning is defective and have come to the conclusion that it
is not. The fault is the adoption of an incorrect test, not the reasoning of
the decision.
The question
of substantial prejudice, which was argued, does not, therefore, have to be
considered.
(4) ‘Person aggrieved’?
Mr Holgate
contends that the applicant, Mr Bannister, is not a ‘person aggrieved’ within
the meaning of section 288 of the 1990 Act and is not, therefore, entitled to
make this application to the court. He cited: Turner v Secretary of
State for the Environment (1973) 28 P&CR 123; Chris Fashionware
(West End) Ltd v Secretary of State for the Environment [1980] JPL
678*; Gwillim (Leslie) v Secretary of State for the Environment
[1988] JPL 263; and Kates v Jeffrey [1914] 3 KB 160.
*Editor’s
note: Also reported at (1980) 256 EG 1009, [1980] 2 EGLR 151.
It is common
ground that Mr Bannister is a farmer who owns land adjoining the appeal site
and across which the appeal site has its access. It appears that the precise
details of this access have been and still are the subject of dispute between
Mr Bannister and the owner of the appeal site, the second respondent, Mr Fordham.
Mr Banister
made representations to the council at the time of the grant of planning
permission in 1980. He attended the local inquiry into the present appeal to
support the council and submitted written representations to the inspector.
On these facts
alone, I am minded to hold that Mr Bannister is a ‘person aggrieved’. As Mr
Fookes points out, the extent and nature of the user of the access across Mr
Bannister’s land could well be affected by the existence or otherwise of the
agricultural occupancy condition.
Mr Fookes
mentioned a number of other reasons why Mr Bannister had a sufficient interest,
including the suggestion that he wanted to buy the appeal property as
accommodation for one of his farm workers. Mr Holgate objected to these matters
on the grounds that they had never been mentioned before in these proceedings.
Be that as it may, I do not find it necessary to resolve the issue, because the
facts I have mentioned above are a sufficient basis for my conclusion. In my
judgment, Mr Bannister is a person aggrieved for the purposes of this
application.
The conclusion
I have reached is, I think, consistent with the approach laid down by Ackner J
in Turner. That was a case where a local preservation society applied to
the court. It was held that they were a ‘person aggrieved’. The learned judge
reviewed the cases and said (at p138):
There is a
firm, fixed, immutable time limit provided in the appeal provisions. The appeal
can only be based on very limited and restricted grounds, as section 245 of the
Town and Country Planning Act 1971 clearly reveals. I see no merit in the
proposition that a person who has merely been given notice of the existence of
the inquiry at the request of and not by the requirement of the Secretary of
State and whose right to attend and make his representations has resulted from
the exercise of the inspector’s discretion should be obliged to sit by and
accept the decision, which, ex hypothesi, is bad law. I can see no
compelling matter of policy which requires this form of silence to be imposed
on a person who has, again ex hypothesi, a clear grievance in law. On
the other hand I see good reason, so long as the grounds of appeal are so
restricted, for ensuring that any person who, in the ordinary sense of the
word, is aggrieved by the decision, and certainly any person who has attended
and made representations at the inquiry, should have the right to establish in
the courts that the decision is bad in law because it is ultra vires or
for some other good reason. It is true that the would-be developer may be held
up while the appeal is made, but, as the dates in this case indicate, the
procedure is a reasonably expeditious one and I have no doubt that an
application for special expedition, where justified, would be listened to
sympathetically by the court.
In his report
the inspector classifies the applicants, inter alios, as ‘interested
persons’, a classification which is clearly justified by the facts. They were
persons whom the appointed person in his discretion had allowed to appear at
the inquiry and make representations in relation to the subject-matter of the
inquiry, which representations had to be recorded by the inspector and
transmitted with his, the inspector’s, findings of fact and conclusions to the
Secretary of State with a view to the Secretary of State accepting or rejecting
those findings of fact and conclusions. Such persons have, in my judgment,
impliedly the right that the Secretary of State in considering those
representations shall act within the powers conferred upon him by the statute
and shall comply with the relevant requirements of the statute, in just the
same way (as is conceded to be the case) as has a person who makes
representations at the inquiry being a person on whom the Secretary of State
has required notice of the inquiry to be served. I thus conclude that no valid
differentiation can be made between a person who appears at an inquiry and
makes his representations having had notice of the inquiry at the insistence of
the Secretary of State and a person who appears and makes his representations
by permission of the appointed person. This question was not before Salmon J in
Buxton v Minister of Housing and Local Government (supra),
the Town and Country Planning Appeals (Inquiry Procedure) Rules 1962 having not
then been made. Moreover, I derive from the recommendations of the Court of
Appeal . . . that the narrow construction should now be rejected just
sufficient fortitude for not following the decision in the Buxton case
so reluctantly reached by the very learned judge. I therefore reject the
respondent’s first proposition that there is no jurisdiction in this Court
because I am obliged to impose a very restricted meaning on the words
‘aggrieved person’.
Conclusion
I have
accepted Mr Fookes’ second point and the decision therefore prima facie falls
to be quashed. Mr Holgate pointed out that I have a discretion whether to
quash, but I do not think there are any grounds for its exercise here. The
application is therefore granted and the decision is quashed.
Application
granted and decision quashed.
