Applicant seeking temporary and permanent permission for dwelling – Council refusing both applications – Inspector finding no functional need and dismissing appeal – Whether inspector’s decision unlawful – Application dismissed
In November 1992 the applicant was granted planning permission for the siting of a mobile home on land at Minsden Farm for a period of three years. The applicant commissioned a report from the independent advisory service, ADAS, which stated that the farm had “the potential to be a viable holding, providing the future proposals for the business are adhered to”. In 1996, following a further ADAS report, the applicant applied for planning permission for a permanent dwelling. The council received advice that did not accord with the ADAS report. The applicant withdrew his application, but retained the mobile home on the land, thereby facing enforcement action. In November 1996 he applied for retention of the mobile home for a period of three years, and, in June 1997, resubmitted his application for a permanent dwelling. Both applications were refused by the council.
On appeal, the inspector identified the main issue as being the question of whether there was a “sufficient agricultural and/or rural justification to warrant the proposals”. The inspector found that there was “no existing functional need for either temporary or permanent accommodation to serve the agricultural activities carried out at the holding”. Pursuant to section 288 of the Town and County Planning Act 1990, the applicant applied to quash the inspector’s decision. The applicant argued that he had a legitimate expectation that, when a planning application for a permanent dwelling was being determined, regard would be had to the provisions of para E13 in the 1992 version of PPG 7 and to the circumstances of the grant of the earlier permission. It was submitted that, in view of para E13, the only question when considering permanent accommodation was that of viability, and it was not for the applicant to prove functional need.
Held: The application was dismissed.
The applicant’s legitimate expectation was no more than that his application for a permanent dwelling would be considered in the light of whatever policy applied at the time the application fell to be determined. At that time, the local plan had been adopted, and PPG 7 made it clear that the functional test was to be applied afresh when an application for a permanent dwelling was being determined following the grant of permission for a temporary dwelling. Assuming that the normal rule in para E13 had some continued application, both the local plan policy and the 1997 version of PPG 7 were new policy considerations that could be properly treated as reasons for not applying it. The applicant’s assertion was no more and no less than that the inspector should have taken into account the provisions of E13 and the circumstances of the earlier permission and weighed them fairly in the balance along with other material considerations. It was clear that the inspector had done so.
Matthew Horton QC and Christopher Boyle (instructed by Howe Roche & Waller, of Luton) appeared for the applicant; Philip Sales and Clive Sheldon (instructed by the Treasury Solicitor) appeared for the respondent Secretary of State for the Environment, Transport and the Regions; North Hertfordshire District Council did not appear and were not represented.
Sarah Addenbrooke, barrister