Town and Country Planning Act 1971, section 246 — Appeal against decision of the Secretary of State to uphold enforcement notices served by local planning authority on the appellant in respect of the storage of grain on the appellant’s farms — Appellant farmed over 2,000 acres, about 520 of which he owned and the remainder he held as tenant — His agricultural holding comprised a widely scattered number of farms — The proceedings related to the storage of grain on two farms on which the appellant had built a number of silos and attendant drying facilities — The enforcement notices alleged breach of planning control by making a material change in the use of the land — The grain storage of which complaint was made related mainly to storage resulting from the EEC intervention system and under an agreement with the Grain and Feed Trade Association, which was concerned with grain futures — Storage for these purposes caused a considerable nuisance in the locality as it involved transport of grain to the storage sites by heavy lorries over comparatively narrow country lanes — The appellant’s objection to the enforcement notices was that by their wording, and by the interpretation given by the Secretary of State to the land affected, the scope of the notices was distorted and legitimate storage arrangements prevented — The Secretary of State had taken the view that the two farms to which the proceedings related were separate planning units — The appellant attacked this approach and submitted that the Secretary of State had misdirected himself in holding that geographical separation necessarily prevented the separate areas from being part of the same agricultural unit — It was also submitted by the appellant that the Secretary of State’s decision prevented normal storage and drying facilities from being offered to neighbouring farmers and interfered with the appellant’s own existing use rights as a corn merchant — Held that the question as to what constituted a planning unit was one of fact and degree and there was clearly material on which the Secretary of State could reach the conclusion he did — As to the complaint that the enforcement notices precluded some normal storage activities, the appellant had ample opportunity to argue that some condition should have been attached to the notices to cover this point — In any case it was inconceivable that the planning authority would seek to prevent the appellant from storing grain grown on other parts of his own land or helping neighbouring farmers — Appeal dismissed
The following
cases are referred to in this report.
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207;
[1972] 3 All ER 240; (1972) 70 LGR 511, DC
Duffy v Secretary of State for the Environment (1981) 259 EG 1081,
[1981] 2 EGLR 163
Finlay v Secretary of State for the Environment [1983] JPL 802
Hancock v Secretary of State for the Environment and Torridge District
Council [1987] JPL 360
Mason v Secretary of State for the Environment [1984] JPL 332
Swinbank v Secretary of State for the Environment and Darlington Borough
Council February 18 1987, unreported
Williams
v Ministry of Housing and Local Government (1967)
65 LGR 495; 18 P&CR 514, DC
This was an
appeal by Richard Mackney Fuller, a Kent farmer with a large acreage near
Dover, under section 246 of the Town and Country Planning Act 1971, seeking to
have a determination of the Secretary of State for the Environment in regard to
enforcement notices served by Dover District Council remitted to the Secretary
of State for rehearing. The enforcement notices related to Sutton Court Farm
and Walmer Court Farm, which were separated by about two miles.
Barry Payton
(instructed by Marsland & Barber, of Margate) appeared on behalf of the
appellant; John Howell (instructed by the Treasury Solicitor) represented the
Secretary of State; Dover District Council, the planning authority, were not
represented and took no part in the proceedings.
Giving
judgment, STUART-SMITH J said: This is an appeal brought pursuant to section
246 of the Town and Country Planning Act 1971 in respect of the decision by the
Secretary of State to uphold enforcement notices served by the local planning
authority, the Dover District Council, on the appellant. The notices are dated
May 15 and November 27 1984 and are referred to respectively as A and B. After
an extensive inquiry before an inspector the notices were affirmed in a
decision letter dated February 10 1986. The appellant seeks to have the matter
sent back to the Secretary of State for reconsideration of certain aspects of
the case.
The appellant
is a farmer. 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; 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 land is shown on the plan attached; that to which the
enforcement notices relate, namely Sutton Court and Walmer Court Farm, edged in
red, the remainder in green, though recent acquisitions are not shown.
The case
relates to the storage of grain at Sutton Court and Walmer Court Farms. The
appellant has built nine silos and attendant drying facilities at Sutton Court
Farm; at Walmer Court Farm it is on a smaller scale.
There are a
number of relevant purposes for which grain can be stored:
1 Grain produced on the appellant’s own land.
This may be either
(a) grain produced on Sutton Court or Walmer
Court land and stored on the farm where it is produced, including grain for
sale through the Grain and Feed Trade Association,
(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,
(c) grain produced elsewhere than at Sutton
Court and Walmer Court Farm but stored respectively at those farms. No one
suggests that storage under (a) and (b) are subject to planning control.
Storage for the purposes of (c) is in dispute.
2 Drying and storage of grain produced by
neighbouring farmers,
storage capacity.
3 Possibly storage incidental and ancillary to
the business of a corn merchant. This was 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. It is unclear whether it is still being
carried on or to what extent, if at all, it was ever carried on at Sutton Court
or Walmer Court.
4 Storage of grain under GAFTA agreement. The
Grain and Feed Trade Association is concerned with grain futures. Storage is
subject to stringent requirements; it may involve storage of the appellant’s
home produced grain, or more probably, that from other members. Most if not all
such stores in the area, other than the appellant’s, are not on farms.
5 Intervention storage. This results from EEC
regulations concerning the support price of grain, whereby farmers who are
unable to obtain the relevant price by selling on the market may dispose of
their grain through the intervention system.
The inquiry
before the inspector was primarily concerned with intervention and GAFTA
storage. There is no doubt that the former, and to a lesser extent the latter,
caused a considerable nuisance in the locality, involving as it did large
lorries frequently carrying bulk grain from ships at Dover to the storage sites
over comparatively narrow country lanes. The inspector found that this was a
material change of use amounting to development. The appellant accepts these
findings and the Secretary of State’s decision to uphold the enforcement
notices in so far as they relate to these matters. But it is submitted on
behalf of the appellant that the wording of the enforcement notices, coupled
with the interpretation which the Secretary of State has given to the land
which they affect, has resulted in the prohibition of purposes 1(c), 2 and 3
above, which ought to be permitted.
It is
necessary, therefore, to refer to the enforcement notices. Notice B relates to
‘land and premises at Sutton Court Farm, Langdon Abbey Farm, Langdon Court Farm
and Walmer Court Farm near Dover shown edged red on the attached plan’. The
alleged breach of planning control 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’. The steps required to be
taken were ‘Discontinue the use of the land for the purpose of the commercial
storage of grain not grown on the agricultural unit comprising Sutton Court,
Langdon Court, Langdon Abbey and Walmer Court Farm’. Notice A was in similar
terms but related only to Sutton Court Farm and can be ignored for practical
purposes. It will be observed that under the enforcement notices the appellant
is not prohibited from storing at Sutton Court grain produced at Walmer Court
and vice versa.
The first
ground of appeal advanced by Mr Payton on behalf of the appellant is that in
his decision letter the Secretary of State has indicated that the relevant area
of land is the planning unit and that Sutton Court and Walmer Court are
different and separate planning units; so also may be the other outlying areas
edged in green and that although he has not varied the enforcement notices to
give effect to this view as between Walmer Court and Sutton Court, the result
will be that corn grown on the other outlying areas cannot be stored at either
Walmer Court or Sutton Court.
I must refer
to the decision letter at para 7, where first of all the Secretary of State
sets out the inspector’s conclusions. He says:
It may be
that in dealing with multi-thousand acre farms, when changing tenancies can
cause fluctuations in the area farmed, the significance of defining with any
precision the planning unit in terms of occupation of the land is less
apparent; indeed in the present instance a further 311 acres were acquired
between the issue of the two notices. It would seem that the farming relevance
in this case is better expressed in terms of the agricultural unit, as
interpreted in section 207(1), the size of which can be expected to vary and
should not be defined in territorial terms. On the assumption that it is not
open to the Secretary of State to increase the area of land covered by the
enforcement notice it seems to me that a satisfactory way of conveying to the
recipient what it is that is held to be wrong and what must be done to remedy
it would be to adopt Notice A, correcting it to recite a mixed use of the land
at Sutton Court Farm for agricultural purposes and for the commercial storage
in a futures or intervention store of grain not grown on the agricultural unit
of which Sutton Court Farm forms part; and varying the operative part to
require the latter use to be discontinued. In view of the consideration given
to these aspects during the inquiry I do not think either party would be
prejudiced by these changes to the notice; nor did the appellant seek to make
any point of technical dispute on the framing of the notice.
Those are the
inspector’s conclusions. The Secretary of State goes on:
These
conclusions have been noted, but the Secretary of State has taken a somewhat
different view from the evidence. 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. In this case there has been
much argument as to the extent of the planning unit. There seems, however, to
have been an assumption, by both parties to the appeals, that the planning unit
and the agricultural unit or agricultural holding are one and the same. This
view is not necessarily accepted. The planning unit is normally regarded as the
unit of occupation unless some smaller area, both physically and functionally
separate, can be defined. In this case there is an agricultural holding, albeit
expanded both between and since the issue of the two enforcement notices, which
comprises a widely scattered number of farms — some self-contained with their
own farmhouses, farmyards and buildings — and single field or groups of fields,
as much as eight miles or so apart as the crow flies and within a rough radius
of six or seven miles from Sutton Court, totalling over 2,000 acres. About 520
acres are owner-occupied by Mr Fuller, the remainder being tenanted. There is
clearly considerable physical separation of many parts of the holding and
separate occupation, even though all parts may be in broadly the same arable
agricultural use and farmed in partnership as one agricultural holding. The
term ‘unit’, however, implies a single contiguous area and, while it would be
accepted that a farm which is split by roads or which has an outlying field a
short distance from the main area of the farm can reasonably be regarded as
forming a single planning unit, the view is taken that the holding in this
case, as described above, cannot, as a matter of fact and degree, be so
regarded, but that it constitutes a number of separate planning units. To take
the most extreme example in this case, for illustration, it is considered that
the nine acres at New Mill, Northbourne cannot reasonably be regarded as being
within the same planning unit as the 22 acres at Broomfield Bank Hougham, or
that either they or the Walmer Court land — which is some two miles from the
nearest point of any of the Sutton Court farmland — can reasonably be regarded
as being within the same planning unit; any more than, say, the similarly
scattered retail outlets of a local chain of shops, all in the same ownership
and occupation and performing the same function, would be so regarded.
Mr Payton
submits that the Secretary of State was wrong to have regard to the planning
unit or at any rate in considering that it could be different from and smaller
than the agricultural unit. He submits that the Secretary of State misdirected
himself in holding that geographical separation prevented some or all the
separate areas of land from being part of the agricultural unit and that the
case should be sent back to him to reconsider this matter. Mr Payton supported
these submissions on the ground, first, that there is to be found at section
207(1) of the Act a definition of ‘agricultural unit’, which
means land
which is occupied as a unit for agricultural purposes, including any
dwelling-house or other building occupied by the same person for the purpose of
farming the land.
Second, he
drew attention to the Town and Country Planning General Development Order 1977,
which provides for the grant of permission for the development of land under
Part III of the Town and Country Planning Act 1971 pursuant to section 24.
Article 3 provides that subject to subsequent provisions development of any
class specified in Schedule 1 to the order is permitted. Schedule 1 Class VI
relates to agricultural buildings, works and uses and provides for
the carrying
out on agricultural land having an area of more than one acre and comprised in
an agricultural unit of building or engineering operations requisite for the
purposes of agriculture (other than the placing on land of structures not
designed for those purposes or the provision and allocation of dwellings)
so long as
certain conditions are satisfied. In the General Development Order
‘agricultural unit’ is similarly defined as in section 207. He further relied
upon a decision of Hodgson J in Hancock v Secretary of State for the
Environment and Torridge DC (unreported, CO/1544/84)* in which the learned
judge considered the interpretation of ‘agricultural unit’. In that case the
farmhouse and farmyard were physically separated by a road from the rest of the
farm and there was other land at a distance of about one-third of a mile.
*Editor’s
note: There is a report of this case at [1987] JPL 360.
The judge
recited the appellant’s argument at p 10 as follows:
If you find
that one piece of land is used for agriculture but is part of a unit which, as
a whole, is not, then it does not come within Class VI. But if, as a
matter of fact, you find that there is a trade or business carried on and that
that trade or business is agriculture, you then go on to identify the land upon
which that trade or business is carried on. It matters not that some parts of
the land are not contiguous with other parts of the land. Then, if the total of
the land exceeds one acre, the development on any one part of it is within
Class VI.
A little later
on he indicates that he accepts the appellant’s contention, and continues:
I derive
support for this view from the decision in Godfrey v Waite. It
seems clear that actual contiguity was not considered requisite in that case.
The result of finding otherwise would, in my judgment, be unfortunate. I am
told and, indeed, ordinary observation in many country villages would confirm,
that many farmhouses and farm buildings are not actually contiguous with the
rest of the farm, and it seems improbable that if one of them occupies less
than one acre it was intended thereby to be taken outwith Class VI.
No doubt
there will be cases where a ‘feature’ is so substantial that it makes the parts
it separates incapable of being worked as one agricultural unit but in holding
that any ‘substantial feature’ will inevitably have the effect of making the
two parts separate, seems to me to be an error. Once again, it is no doubt a
matter of fact and degree, but again I find it difficult to believe that on the
view of the law at which I have arrived the Secretary of State could find that
this plot and the other parts, particularly the two close to the village, were
not part of the same agricultural land.
Mr Payton’s
argument appeared to be that because the expression ‘agricultural unit’ is to
be found in the Town and Country Planning Act and the General Development
Order, then in relation to agriculture it is the only unit or area of land that
falls to be considered. I confess I found difficulty in following this
submission. The definition in section 207 is expressed to relate only to the
provisions of sections 192 to 207 relating to blight notices. And the
definition in the General Development Order is confined to that order. What the
Secretary of State had to determine in considering the enforcement notices was
whether there had been a material change of use so as to constitute development
within the meaning of section 22 of the Act. That can be considered only in
relation to the relevant area of land. This area is for convenience referred to
as the planning unit. What constitutes the planning unit is a matter of fact
and degree to be determined in accordance with the test enunciated by Bridge J
(as he then was) in Burdle v Secretary of State for the Environment [1972]
3 All ER 240 at p 244. It may and frequently will coincide with the
agricultural unit as defined in section 207 and the General Development Order,
but not necessarily so.
Recognising
the difficulties in the way of his primary submission, in his reply Mr Payton
sought to rely on section 22(2)(e) of the Act, 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 or forestry (including afforestation) and the use for any of those
purposes of any building occupied together with land so used.
He submitted
that if the change of use falls within the definition of agriculture, no
question of planning unit arises and that it is necessary to ask if there has
been a material change of use before asking if there is a planning unit. I
cannot accept this submission, which seems to me to be asking the question in a
vacuum, as the Secretary of State pointed out. Mr Payton’s submission is also
inconsistent with the approach of the Divisional Court in Williams v Ministry
of Housing and Local Government (1967) 65 LGR 495. In that case the owner
of a market garden sold produce from the garden from a shop on the land. Later
he sold oranges and fruit which were not grown in the nursery. The question was
whether the selling in the shop of the fruit grown was a material change or
not, since it was common ground that what had previously occurred was
incidental to the use of the premises as a nursery and hence agriculture.
Widgery J (as he then was), with whose judgment Lord Parker LJ and Diplock J
agreed, said at p 499:
In
approaching this problem the first and possibly vital question which the
Minister had to decide was: what was the unit of the land to which the test
‘material change of use or no’ had to be applied? It seems to me that that was a first and
vital question because, if the unit for consideration was the building in
isolation, I can well see, without attempting to decide the point, that it
might have been contended that the use of the building in isolation was at all
times used as a retail shop. If that argument had proved to be well-founded, it
might well be said that the appellant’s present activities were permitted by
virtue of the Town and Country Planning (Use Classes) Order 1963. However, the
Minister has taken the view, and in my judgment rightly, that the unit for
consideration was the nursery garden and the building upon it viewed as a
whole. In so doing he followed the directions given, I think, initially by the Court
of Appeal in G Percy Trentham Ltd v Gloucestershire CC.
The question
of what constituted the planning unit is one of fact and degree and there was
clearly material upon which the Secretary of State could come to the conclusion
he did. He regarded the physical separation, rightly in my view, as an
important consideration, but not the only one. See Duffy v Secretary
of State for the Environment (1981) 259 EG 1081, [1981] 2 EGLR 163 per
Glidewell J (as he then was) at p 1086 where he said:
In my
judgment when buildings lie on opposite sides of a road, at some distance from
each other, separated by other properties, that geographical separation must be
a major, and may be the main factor in deciding whether they form one planning
unit.
See also Swinbank
v Secretary of State for the Environment and Darlington BC (unreported,
dated February 18 1987), a decision of Mr David Widdicombe QC, sitting as a
deputy High Court Judge.
No doubt when
considering farmland which is separate from the main bulk of the land constituting
the holding there are other considerations; but the Secretary of State referred
to some of these and clearly took them into account in reaching his decision.
In my judgment, there was no misdirection in law and this, which is the
appellant’s main ground, fails.
The second
ground advanced by Mr Payton is that in seeking to preclude the use of the site
for GAFTA and intervention storage, the Secretary of State has precluded normal
activities of a farmer in providing storage and drying facilities for
neighbouring farmers and has effectively negated the appellant’s existing use
rights as a corn merchant. It appears to be contended that in some way the
appellant was unable to advance these arguments to the inspector and the
Secretary of State or alternatively that the Secretary of State was bound to
consider them under the provisions of section 88(2)(a), which provides:
An appeal may
be brought on any of the following grounds: (a) that planning permission ought
to be granted for the development to which the notice relates or, as the case
may be, that a condition or limitation alleged in the enforcement notice not to
have been complied with ought to be discharged.
Reliance is
also placed on the Secretary of State’s powers provided by section 88B(1).
To some extent
this submission depends upon the first and fails with it. Moreover it is clear
that these limited forms of storage were prohibited by the express terms of the
enforcement notices and the appellant had ample opportunity, if he had so
wished, to argue that some condition should have been attached to the
enforcement notice to cover the point; but he did not do so, no doubt for the
very good reason that the main concern of the parties was in relation to GAFTA
and intervention storage.
The Secretary
of State does not have to search around to see whether conditions should be
inserted to cover some minor and subsidiary use unless he is invited or chooses
to do so: see Finlay v Secretary of State for the Environment [1983]
JPL 802 per Forbes J at 803, and Mason v Secretary of State
for the Environment [1984] JPL 332 at p 334 per Mr David Widdicombe
QC sitting as a deputy High Court judge. Moreover I do not think that any
hardship is caused to the appellant. It seems to me inconceivable that the
local planning authority will seek to prevent his storing grain grown on other
parts of his land not referred to in the notice at Sutton Court or Walmer
Court. I suspect that they will adopt the same attitude to drying and storing
grain of neighbouring farmers, unless this gives rise to an unacceptable level
of traffic, which seems unlikely. As to storage of grain qua corn merchant, it
is not at all clear that there is any established use at Sutton Court Farm or
Walmer Court or that such use, if any, has not been discontinued. In my view,
if these matters present any real problem to the appellant he can apply for
planning permission and is in no way prejudiced by the Secretary of State’s
present decision.
For these
reasons the appeal must fail.
The appeal
was dismissed with costs. Leave to appeal to the Court of Appeal was refused.
