Town and Country Planning General Development Order — Class VI permitted development — Agricultural development — Erection of silage clamp on one unit — Erection of barn on second unit — Whether development within Class VI — Meaning of ‘agricultural land having an area of more than one acre’ — Whether house and garden part of agricultural land — Whether separate areas agricultural land
In Hancock
v Secretary of State for the Environment the respondent occupied a farm
of 45 acres consisting of a house, a number of farm buildings and a garden
within a separate curtilage of about one acre lying in a village on the north
side of a classified road, with two small fields close to the dwellinghouse,
one to the south-west and one on the north side of the road and a short
distance to the west, and the balance of the farmland some one third of a mile
away. In 1983, and without obtaining express planning permission, the
respondent constructed a silage clamp within the northern boundary of the
curtilage of his house. In August 1983 the local planning authority issued an
enforcement notice alleging that the construction of the silage clamp was a
breach of planning control and requiring the respondent to remove the clamp
from the land. The respondent appealed to the Secretary of State for the
Environment on grounds (a) and (b) of section 88(2) of the Town
and Country Planning Act 1971, namely, that planning permission ought to be
granted for the development and, alternatively, that the matters alleged in the
enforcement notice did not constitute a breach of planning control. The
Secretary of State decided that planning permission should not be granted. As
the silage clamp was 22 metres from the classified road, its construction did
not have the benefit of permitted development under Class VI of the Town and
Country Planning Development Order 1977. Even if the silage clamp were moved so
as not to be within 25 metres of the classified road, an appeal based on ground
(g), had that ground been relied on, that the steps required to be taken
by the notice exceed what is necessary, would not have succeeded; there would
still have been a breach of planning control, as the dwellinghouse and garden
could not be said to be used for agriculture, nor could they be considered as
being contiguous with the rest of the farmland, being separated by the
substantial feature of the classified road. Development would not, therefore,
have been permitted by Class VI in any event. The respondent’s appeal against
that decision under section 246 of the 1971 Act was allowed by Hodgson J
(November 28 1986).
In Tyack
v Secretary of State for the Environment, the respondent purchased a
dwellinghouse in 1944, standing in about half an acre of land, from which he
directed his widespread farming and other businesses. Since 1944 the respondent
has owned or rented about 10 additional acres of land in the vicinity. Two and
a half acres are divided from the curtilage of the dwellinghouse by a rough
track of five metres wide which is not in the respondent’s ownership or
occupation. The remaining seven acres of the 10 lie to the north and east of
the property. In early 1984 the respondent began to build a barn at the back of
his garden. His purpose was to provide for the
rough grass by the house from time to time. The barn was 60 ft long and 20 ft
wide and one end of it lay about five yards from the main living-room of an adjoining
house. In August 1984 the local planning authority issued an enforcement notice
alleging that the construction of the barn was a breach of planning control and
required the respondent to demolish the barn. The respondent appealed to the
Secretary of State for the Environment on grounds (a) and (b) of
section 88(2) of the 1971 Act. The respondent’s appeal against the enforcement
notice was dismissed by the Secretary of State in July 1985. The respondent’s
appeal against that decision was allowed by Nolan J (June 4 1987), who followed
Hancock v Secretary of State for the Environment [1987] JPL 360.
The Secretary
of State appealed both decisions, contending that the development in each case
was not permitted development. Class VI of the Town and Country Planning
General Development Order 1977 permits development only ‘. . . on agricultural
land having an area of more than one acre and comprised in an agricultural unit
. . .’. Agricultural land is defined in section 109 of the Agriculture Act 1947
as ‘land used for agriculture which is so used for the purpose of a trade or
business’; and an agricultural unit includes ‘any dwellinghouse or other
building occupied by the same person for the purpose of farming the land’. In
neither case could the house and garden fall within the definitions, as the
land in question was not used for agriculture.
Agriculture Act 1947 defines the expressions ‘agricultural land’ and
‘agricultural unit’, making a distinction between the two expressions and giving
a meaning to the latter expression which may include a dwellinghouse. A
dwellinghouse and its curtilage may constitute agricultural land within the
definition: Blackmore v Butler [1954] 2 QB 171. Whether or not
any particular dwellinghouse and garden can be said to be used for agriculture
is a question of fact and degree in every case. The entirety of the curtilage
must be looked at, and in relation to that curtilage the question must be
asked: ‘is this, or is it not, agricultural land within the definition?’ (see p 84G). Where the curtilage of a
dwellinghouse and garden exceed one acre, it is for the Secretary of State to
decide, as a matter of fact and degree, whether the house and its curtilage are
land used for agriculture.
However, if
the area, the subject of an enforcement notice, is less than one acre the
question then arises as to whether some wider area of the land can be brought
into account. This question is divided into two: first, ‘is the land on which
the development has been carried out ‘agricultural land’?’; and, second, ‘if
so, has it an area of more than one acre?’
(see p 86D). On the first question, whatever site the local planning
authority chooses to base the enforcement notice upon, the question is: ‘does
that site form part of an area of agricultural land?’. The local planning
authority cannot properly relate the enforcement notice to a small piece of
land which of itself may have no agricultural use, but is surrounded by
agricultural land, and claim that the site is not within the scope of Class VI
of the Town and Country Planning General Development Order. If the land in
issue, the ‘primary’ area, with boundaries defined in some reasonably clear
way, is agricultural land within the definition, as a matter of fact and
degree, and that primary area is so closely linked to some adjoining
agricultural land, then no sensible distinction can be drawn between the two
parcels. But if the primary area is divided from other land, albeit in the same
occupation, by some distinguishing feature, or if it does not adjoin the other
agricultural land, as a matter of fact and degree, it may be right to conclude
that the only area to be measured for purposes of Class VI of the General
Development Order 1977 is the primary area and no other land is to be taken
into account (see p 86F-H).
The appeal in Hancock
v Secretary of State for the Environment was dismissed; the order of
Hodgson J, remitting the matter to the Secretary of State for the Environment
stands, with the opinion of the Court of Appeal
issue, as to whether the primary area, the subject of the enforcement notice,
is, as a question of fact and degree, agricultural land. But his decision on
the second issue, that it was an error on the part of the Secretary of State to
conclude that a ‘substantial feature’ like the dividing road will inevitably
have the effect of making two parts separate, was not upheld.
In Tyack
v Secretary of State for the Environment the Secretary of State’s appeal
was allowed as the decision of the inspector, to whom the decision had been
delegated, was correct in law. The conclusion of the inspector, as a matter of
fact and degree, that the dwellinghouse and its curtilage were not ‘agricultural
land’ concluded the matter. There was no need to consider the second question:
‘what was the extent of the agricultural land?’.
to in the judgments
Blackmore v Butler [1954] 2 QB 171; [1954] 3 WLR 62; [1954] 2 All ER
403; (1954) 52 LGR 345, CA
Burdle v Secretary of State for the Environment [1972] 1 WLR 1207;
[1972] 3 All ER 240; (1972) 70 LGR 511; 24 P&CR 174; [1972] EGD 678; 223 EG
1597, DC
Godfrey v Waite [1951] EGD 9; (1951) 157 EG 582, CA
Howkins v Jardine [1951] 1 KB 614; [1951] 1 All ER 320; [1951] 1 TLR
135, CA
Appeal against
decisions of Hodgson J and Nolan J
These were two
appeals brought by the Secretary of State for the Environment against decisions
of Hodgson J (November 28 1986) and Nolan J (June 4 1987), who in each case had
allowed appeals made by the respective respondents under section 246(1) of the
Town and Country Planning Act 1971 alleging errors of law in the decisions of
the Secretary of State, or by his inspector, in refusing appeals against
enforcement notices served on the respective respondents.
(instructed by the Treasury Solicitor) appeared for the appellant Secretary of
State for the Environment.
(instructed by Badhams) appeared for the respondent in the first appeal.
Dinkin (instructed by Thomas M Barth & Co, for Kendall & Davies, of
Bourton-on-the-Water) appeared for the respondent in the second appeal.
respective local planning authorities, Torridge District Council and Cotswold
District Council, the second respondents to the original appeals, did not
appear and were not represented.
following judgments of the court were delivered.
LORD
DONALDSON OF LYMINGTON MR: I will ask Glidewell LJ
to deliver the first judgment.
GLIDEWELL
LJ: Both these appeals relate to the proper
interpretation of Class VI of Schedule 1 to the Town and Country Planning
General Development Order 1977. Both raise, though on different facts, the
question whether a house occupied by a farmer, and its garden, which are
physically separated from the remainder of the land comprising the farm, can be
held to be ‘agricultural land’ within the meaning of the General Development
Order, and if so in what circumstances. For this reason we have heard the
appeals together.
Mr Hancock’s
case
Mr Hancock
occupies a farm some 45 acres in extent at Roborough in Devon. His house is on
the north side of a road running east to west through the village of Roborough
and a short distance from the classified road which runs north out of the village.
It stands in a curtilage which includes a number of farm buildings and a
garden. Surprisingly, the Secretary of State for the Environment did not find
as a fact what area the curtilage of the house occupies. Hodgson J, from whose
decision this appeal lies, was led to believe
below one acre. Adjoining the western, northern and eastern boundaries of this
curtilage are other houses, as there are on the south side of the road facing
the curtilage. Two of the fields Mr Hancock occupies are close to his house,
one to the south-west and one on the north side of the road and a short
distance to the west.
In 1983 Mr
Hancock constructed a silage clamp on the northern boundary of the curtilage of
his house. It is agreed that the construction of the clamp was development
within section 22 of the Town and Country Planning Act 1971 for which planning
permission was required. No express permission was obtained.
On August 3
1983 the Torridge District Council served on Mr Hancock an enforcement notice
alleging that the construction of the silage clamp was a breach of planning
control and requiring him to remove the clamp from the land.
Mr Hancock
appealed to the Secretary of State under section 88 of the 1971 Act on grounds
(a) and (b) in subsection (2) of that section, that is, that
planning permission ought to be granted for the development or that the matters
alleged in the enforcement notice did not constitute a breach of planning
control. The Secretary of State decided that planning permission should not be
granted, and there is no challenge to his decision in that respect. For reasons
I shall explain later, it was accepted that the appeal on ground (b)
could succeed only if the silage clamp were at least 25 metres from a
classified road, and the distance between the clamp and the road running out of
the village to the north was just over 22 metres. However, the Secretary of
State considered another ground of appeal, that is to say, ground (g),
which is that the steps required to be taken by the notice exceeded what was
necessary. In other words, this raised the issue whether, if the edge of the
clamp were moved to a position at least 25 metres from the road, its
construction would then constitute a breach of planning control. It is on this
question that the main argument has centred. The Secretary of State decided
that, even if the clamp were moved in that way, it would still constitute a
breach of planning control and dismissed the appeal to him.
Mr Hancock
appealed against that decision under section 246 of the 1971 Act. On November
28 1986 Hodgson J allowed his appeal and remitted the matter to the Secretary
of State. The Secretary of State now appeals to this court against that
decision.
Mr Tyack’s
case
Mr Tyack has
lived at Newlands in Bledington, Gloucestershire, since 1944. Newlands was
built as a dwellinghouse in 1919 or 1920. Until Mr Tyack purchased the house it
was solely in residential occupation. From the time he purchased it, however,
he began to direct his widespread farming and other businesses from that
property. He had interests in contracting as well as in farming. Some of his
farming interests were as far away as Derbyshire.
Newlands
itself stands in about half an acre of land, and since about 1944 Mr Tyack has
owned or rented about 10 additional acres of land in the vicinity. Two and a
half acres of land is divided from the curtilage of Newlands by a field access
which is not in his ownership or occupation and which runs to other land at the
rear which he also does not own or lease. This is a rough track about five
metres wide. The remaining seven acres of the 10 lie to the north and east of
this field and are owned by Mr Tyack.
In about 1964
Mr Tyack gave up his principal farming interests in other areas, but he
continued to farm the 10 acres in the immediate vicinity of Newlands. In March
or April 1984 he began to build a barn at the back of the
be given to calves which were from time to time kept by him in the garden at
Newlands or on some rough grass beside the house. Without the barn it would
have been necessary for his wife to walk a distance of some 100 yards or so to
one of the adjoining fields to fetch the feed from another building. The barn
he constructed is 60 ft long and 20 ft wide and it lies to the side and rear of
the house. It was described by the inspector who decided this appeal as having
‘a gaunt silhouette and featureless elevations’. One end of it lies about five
yards from the main living-room window of an adjoining house.
On August 14
1984 the Cotswold District Council served on Mr Tyack an enforcement notice
alleging that the construction of the barn was a breach of planning control, in
that no express planning permission had been granted. The notice required Mr
Tyack to demolish the barn and remove the materials resulting from such
demolition from the site.
Mr Tyack
appealed against the enforcement notice, also on grounds (a) and (b)
in section 88(2) of the 1971 Act. The inspector to whom the decision on the
appeal was delegated held an inquiry on June 3 1985, and by letter dated July
31 1985 he dismissed the appeal.
Mr Tyack
appealed to the High Court against that decision. On June 4 1987 Nolan J,
hearing the Crown Office List, followed Hodgson J’s decision in the Hancock
case, allowed Mr Tyack’s appeal and remitted the matter to the Secretary of
State. The Secretary of State now appeals to this court against that decision
also.
The
statutory provisions
Both the
construction by Mr Hancock of the silage clamp and the building by Mr Tyack of
the barn were development for which planning permission was necessary. Both
respondents to this appeal claim that such permission was granted to them by
the Town and Country Planning General Development Order 1977.
Article 3 of
that order permits development described in Schedule 1 to the order, on land to
which the order applies, without express permission but subject to the
conditions imposed by Schedule 1. So far as is material, Class VI of Schedule 1
reads:
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 use of that land for the purposes of agriculture . . . so long as:
and then there
are three conditions of which the third is:
(c) no part of any buildings (other than moveable
structures) or works is within 25 metres of the metalled portion of a trunk or
classified road.
By Article 2
of the order, ‘agricultural land’ and ‘agricultural unit’ have the meanings
assigned to those expressions in the Agriculture Act 1947. By section 109 of
that Act those terms are defined as follows:
109–. (1) In this Act the
expression ‘agricultural land’ means land used for agriculture which is so used
for the purposes of a trade or business.
The rest of
the subsection does not arise.
(2) In this Act the expression ‘agricultural
unit’ 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 the
remainder of that subsection does not arise.
By subsection
(3) ‘agriculture’ is defined as:
includes
horticulture, fruit growing, seed growing, dairy farming and livestock breeding
and keeping,
and various
other matters which are not here relevant.
It is apparent
that the definitions in the 1947 Act draw a distinction between agricultural
land and an agricultural unit. The latter is obviously a wider expression which
specifically may include a dwellinghouse. It has, however, been held in this
court that a dwellinghouse and its curtilage may constitute agricultural land
within the definition. That was held in Blackmore v Butler [1954]
2 QB 171, the decision in which case was itself based upon an earlier, but
apparently only briefly reported, decision of this court in Godfrey v Waite
in 1951*. In his judgment in Blackmore v Butler Somervell LJ
referred to Godfrey v Waite, which was a case in which a manor
house, which had been occupied with 32 acres of agricultural land, was divided
into two dwellings on the death of the owner. The 32 acres were let separately.
Later the lessee of the 32 acres took a separate lease of one of the two
dwellings in the manor house. When he died his widow claimed that her house was
an agricultural holding. She put her argument in two ways: first, that,
although she held two separate tenancies, of the house and of the 32 acres of
land, they could be aggregated and the whole was agricultural land;
alternatively, it was claimed that the house itself, with such garden as it
had, was agricultural land.
*Reported at
(1951) 157 EG 582: Ed.
Somervell LJ
in Blackmore v Butler, at p 175, quoted Sir Raymond Evershed MR
in Godfrey v Waite as follows:
Evershed MR
then turned to the other way in which the case was put: ‘We therefore have to
consider this case, as I understand it, with our eyes fixed exclusively upon
this particular tenement, the Rodborough Manor segment, and ask whether that,
not as part of some larger whole, but in itself, is an agricultural holding.
Let me turn again to the definition. The words are relatively few in number and
apparently simple in expression. Is this holding which I have described, this
tenement, ‘used for agriculture’? I need
not take any further time in considering the qualification about trade or
business, for there is, I think, no doubt whatever — we certainly have heard no
argument to the contrary — that the farming or agricultural activities carried
on by Mrs Waite are not carried on as a hobby or for pleasure, but are carried
on for the purposes of trade or business. So it depends on the meaning of these
three simple words, ‘used for agriculture’. In one sense you may say that
anybody carrying on an agricultural activity was using the place where he lived
for agriculture in so far as it could be said that he must live somewhere, and
if he carried on his business while residing at the particular premises then it
could be said in a general sense that he was using these premises for
agriculture: he was using them for the purpose of carrying on therefrom his
agricultural business at some nearby place. But there must clearly be some
limit to the scope of the phrase in that connection.’
Evershed MR
then gave an example which arose in the course of argument and he concluded, as
quoted by Somervell LJ at the top of p 177:
‘Putting the
case in that way, it seems to me to indicate that this apparently simple
inquiry is apt to become very much a matter of degree and a question for the
trial judge prima facie to determine as a matter of fact in each
particular case.’
In his
judgment in Blackmore v Butler, Romer LJ said, at p 181:
There remains
the question whether the cottage,
(which I
interpolate was the subject of Blackmore v Butler)
by itself, was
‘used for agriculture’ (which I take to mean ‘used for the purpose of
agriculture’ or ‘used in connexion with agriculture’) so as to constitute
agricultural land. It is, of course, clear that the mere fact that a dwelling
is occupied as a residence by a person who is an agricultural worker, or who is
otherwise engaged in agricultural pursuits, is not in itself sufficient to
constitute that dwelling agricultural land. The unreported case of Godfrey
v Waite is sufficient authority for that. Moreover, the contrary view
would lead to one of two results: either that once the dwelling had been
occupied by such a person it would be stamped for evermore with the character
of agricultural land, which would be absurd, or that it would be within or
outside the Act of 1948 from time to time, according to whether its occupier
was such a person or not — a conception which this court in Howkins v Jardine
declined to accept.
Nevertheless,
once it is conceded, as the plaintiff rightly did concede, that the cottage is
‘land’, I can entertain no doubt but that, having regard to all the relevant
circumstances, it is ‘agricultural land’ within section 1 of the Act.
So in Blackmore
v Butler itself the farm labourer’s cottage, which was always occupied
as such and was surrounded by farmland, was held to fall within the definition.
As my Lord,
the Master of the Rolls, said in argument yesterday, the question whether a
house and its curtilage are or are not agricultural land within the definition
can be expressed in more homely language as: ‘Is this a farmhouse or is it a
house occupied by a farmer?’
In Hancock’s
case the Secretary of State in his decision letter said in relation to that
question in para 10 of his decision:
‘Agricultural
land’ is defined in the Agriculture Act 1947 as ‘Land used for agriculture
which is so used for the purposes of a trade or business.’ Neither the farmhouse nor its garden can be
said to be so used; therefore, it is not considered that your client would be
entitled to bring in the farmhouse and its gardens to make up his agricultural
land on the north side of the road to more than one acre.
If this means,
as it appears to mean, that as a matter of law the house and its garden cannot
be said to be used for agriculture, it is wrong, as Hodgson J concluded.
Whether it is or is not so used is a question of fact and degree.
Mr Pleming
advanced what I think even he would regard as a subsidiary argument — that,
even if the remainder of the curtilage of Mr Hancock’s house was agricultural
land, the garden was not, and, if you measured the garden, that might make the
difference between the totality being over and beneath one acre. I do not
propose to spend time on that because, with respect to him, I find no substance
in that argument: it is the entirety of the curtilage which has to be looked
at, and it is in relation to that that the question must be asked: ‘Is this, or
is it not, agricultural land within the definition?’
If, as a fact,
the land the subject of the enforcement notice in this case (which is the
curtilage of the farmbuildings, the yard, the house and the garden) exceeds one
acre in extent, this concludes the appeal. The matter, as Hodgson J held, must
be remitted to the Secretary of State for him to decide as a fact whether the
house and its curtilage are land used for agriculture.
But what if
the area, the subject of the enforcement notice, is less than one acre in
extent? It is at this point that Mr
Fookes, for Mr Hancock, raises what is the real or major issue in both these
appeals.
Mr Fookes
argues that the question, ‘Is this agricultural land having an area of more
than one acre?’ must be answered by
reference to some wider area than the land the subject of the enforcement
notice. The answer must take account either of the whole farm or at least of
those fields which lie close to the
In relation to
this matter the Secretary of State said, in the next passage in para 10 of his
decision letter:
On the
question of whether land on the other side of the road may be brought into
account, the view is taken that this must be decided as a matter of fact and
degree. On this basis, the Secretary of State takes the view that when two
areas of agricultural land are separated by a substantial feature, such as in
this particular case, a made-up public road, which was clearly not in itself
agricultural land, then the land on either side could not be regarded as a
single piece of land for the purpose of Class VI.1. In view of these
considerations, it is not thought that it would be appropriate to amend the
requirements of the notice and the appeal will fail on ground (g).
Hodgson J in
his judgment on this issue said this (at p 10 of the transcript):
The second
question is whether the Secretary of State was right in considering the
farmhouse and farmyard in isolation from the rest of the farm because no other
part of the farm was contiguous with the farmyard plot and the presence of the
‘substantial feature’ of the road separating the farmyard from the plot on the
other side made it impossible to regard the land on either side as a single
piece of land.
For the
Secretary of State it is contended that you have to consider each piece of land
comprising a farm separately and, as a question of fact and degree, then decide
whether they can be combined or not when considering whether any one of them
exceeds one acre. The ‘acre’ requirement is said to be a limiting factor to
prevent the over-development of separate pieces of land.
For the
appellant it is contended that this is the wrong approach. The acre requirement
is there to prevent, for instance, a small allotment from coming within Class
VI. In simple terms, the restrictions in Class VI are there to ensure that only
viable agricultural units are within it. The first question when deciding
whether a building is within Class VI is to ask what is the trade or business
and upon what land is that trade or business carried on. 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.
I break off
from reading Hodgson J’s judgment to comment that it is precisely that argument
which Mr Fookes addresses to us on this appeal. To return to the judgment, the
learned judge said:
In support of
this submission, counsel for the appellant points to the words ‘requisite for
the use of that land for the purpose of agriculture’. That refers back to
‘agricultural land’. If you have to consider each disparate part of a farm
separately it would, it is submitted, make a nonsense of this requirement. A
‘building operation’ on one part of a farm will normally be requisite (or
reasonably necessary) for all the rest of the land, as well as the land upon
which the building is actually erected.
In my
judgment, the appellant’s submissions on this second point in the case are
correct also. Their correctness or otherwise are or may be of great importance
to the appellant, because the actual measurement of the farmyard site is a
difficult one and it might, by a more elaborate measuring exercise, be possible
to demonstrate that [it] is less than one acre.
Missing out
the next paragraph in the judgment the judge concluded:
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.
The question
whether an area of land to which an enforcement notice relates is the relevant
area to be considered does not normally arise in relation to operational
development, that is to say, development consisting of building or engineering
operations. If a building has been erected without planning permission, it
normally does not matter whether the plan attached to the enforcement notice
shows only the site of the building itself or some larger area. But the
question does, however, quite frequently arise in relation to change of use
development. It is in this context that the concept of the planning unit has
come into play: see the seminal case of Burdle v Secretary of State
for the Environment in [1972] 1 WLR 1207 and subsequent decisions based
upon it.
However, in
cases such as these two appeals, when the question is: ‘Is this agricultural
land having an area of more than one acre?’, the extent of the land to be
considered may well be critical. In my view, the question must be divided into
two: one must first consider ‘Is the land on which the development has been
carried out ‘agricultural land?”; and, second, ‘If so, has it an area of more
than one acre?’
On the first
question, whatever site the planning authority chooses to base the enforcement
notice upon, the question is: ‘Does that site form part of an area of
agricultural land?’ The planning
authority cannot properly relate the enforcement notice to a small piece of
land with no, or merely artificial, boundaries, which of itself may have no
agricultural use but is surrounded by agricultural land, and then claim that
the site is not within the scope of Class VI of the Schedule. The question can
only properly be answered in relation to an area of land with boundaries
defined in some reasonably clear way. Whether that area is agricultural land
within the definition is a matter of fact and degree. For want of any better phrase,
I will call such an area ‘the primary area’.
If this first
question is answered in the affirmative, it may then still be possible to argue
that the primary area is so closely linked to some adjoining agricultural land
that no sensible distinction can be drawn between the two parcels. If that is
correct, it is the total area which has to be measured to ascertain whether it
exceeds one acre in extent. But if the primary area is divided from other land,
albeit in the same occupation, by some distinguishing feature, or if it does
not adjoin the other agricultural land, as a matter of fact and degree it may
well be right to conclude that the area to be measured is solely the primary
area and no other land is to be taken into account.
This is, I
believe, what the Secretary of State intended to say in the second passage I
have read from para 10 of his decision letter. If that is what he did mean,
clearly a made-up public road can be a sufficiently substantial feature to
differentiate the primary area (that is to say, the house, the farmyard and
garden) from the other land on the other side of the road.
With the
greatest respect to Hodgson J, I believe that the submissions on behalf of Mr
Hancock, which he accepted, were really more apt to relate to an agricultural
unit within the meaning of the 1947 Act than to ‘agricultural land’ as defined
in that Act.
As an
alternative argument, Mr Fookes argues that the passage in para 10 of the
decision letter is not clearly expressed and thus offends against the
requirements of rule 13(1) of the Town and Country Planning (Inquiries
Procedure) Rules 1974. If he were to succeed on that submission, he would have
to show that as a result of that failure Mr Hancock was in some way prejudiced
and he did not, I believe I am right in saying, direct any attention to that at
all. I agree that the passage in para 10 of the decision letter is not as
clearly expressed as it might be, though, as I have said, I do believe its
meaning is discernible and was accurately discerned by Mr Hancock’s advisers.
Nevertheless, as I will shortly say, it will be necessary to remit this matter
to the Secretary of State, and I suppose he may then take the opportunity, if
he agrees with the criticism I have just made, to express his thinking more
clearly.
It follows
that in my judgment Hodgson J’s conclusion on the first issue, as to whether
the primary area (which in this case is the land the subject of the enforcement
notice) is agricultural land, was correct. On the second issue, whether that
area could be aggregated with other land, I disagree with his conclusion for
the reasons I have given.
The appeal to
Hodgson J proceeded on the basis that the enforcement notice site was more than
one acre in area. We must approach this appeal on the same basis. It follows
that the appeal to this court must in my judgment fail, and the order of
Hodgson J remitting the matter to the Secretary of State should stand, but with
the opinion of this court rather than the opinion of Hodgson J. If, of course,
it transpires that the area of the enforcement site is less than one acre, this
will no doubt affect the Secretary of State’s decision on the appeal to him
which is now remitted to him.
Turning to Tyack’s
case, the inspector who heard Mr Tyack’s appeal, and to whom the decision
on it was delegated, approached the issues in a way similar to that I have
suggested. The enforcement notice in that case related not merely to the site
of the barn itself but to the curtilage of Newlands. The inspector considered
first whether this (that is to say, the primary area in my terminology) was
agricultural land. He noted:
(i) that the house was built as a private
residence and conveyed to Mr Tyack for that use in 1944, and that it still
retains, with its garden, that character;
(ii) that Mr Tyack ran his farming and contracting
businesses from the house and continued to do so in relation to the 10 acres
after his retirement; and
(iii) that from time to time some animals were
grazed on the rough grass beside the house.
The inspector
said (at para 23 of his decision letter):
In
particular, although your client’s evidence on the matter was vigorously
refuted by local residents, I consider that, on the balance of probability,
there were animals on the premises from time to time during his occupation but
it is a matter of fact and degree as to whether this amounted to an
agricultural use of the land or was nothing more than a casual and infrequent
arrangement not constituting a material change of use from residential to
agricultural.
He concluded
at para 24:
Although I
accept in general terms your client’s claim to have had animals at Newlands
from time to time during the period of his occupation I consider the practice
was of a casual, intermittent and insignificant nature and not an activity or
enterprise of sufficient substance to have amounted to an agricultural use of
the land.
So the
inspector answered what I believe to be the correct first question against Mr
Tyack, that is to say, he held that the primary area was not agricultural land.
He then went on to consider the second question, though strictly it was not
necessary for him to do so. At para 25 he said:
I have
considered whether his case could be rescued by regarding Newlands as being
comprised within an agricultural unit of more than one acre by reason
of it being in common ownership with the land close by, but not adjoining it,
which is farmed by your client. It seems to me, however, that there are no
grounds or precedent for regarding the garden of a private residence, which is
physically detached from the land farmed by the occupier, as part and parcel of
the holding to the extent that it automatically acquires an agricultural use.
If the principle was accepted it would establish the novel and tenuous doctrine
that the land on which a person has his private residence is automatically
vested with the use appropriate to his profession or trade and, in my opinion,
there can be no substance to such an argument.
Mr Dinkin, for
Mr Tyack, argues that the inspector in that passage has improperly blinkered
himself. Nolan J in his judgment in this case said (at p 8):
I would
respectfully agree with Mr Justice Hodgson that it is right to adopt a
practical and business-like approach to the question whether any particular
land, albeit separated by a path or a ditch, or even a road, should be
considered together for all the purposes of the General Development Order. Even
if I did not take that view, I would think it right to abide by the precedent
of Mr Justice Hodgson’s decision, the more so since it is expected to be
reviewed by the Court of Appeal.
Then at p 9
the learned judge said:
The question
that remains, taking that view as I do, is in what terms I should remit the
matter to the Secretary of State. As I have said, Mr Justice Hodgson approached
it by way of two questions, the first of which depended upon the dwellinghouse
and garden being regarded in isolation. I have indicated that, as I understand
his judgment, and indeed as I understand the law, that is not in any event the
correct approach. The correct approach is that indicated in his answer to the
second question, and in the interests of clarity I make it clear that it is on
that basis that I would, as matters stand, remit the matter to the Secretary of
State for reconsideration. In other words, that the question whether Newlands
and its garden constitute agricultural land having an area of more than one
acre for the purposes of Class VI should be considered by reference to the use
of the land in conjunction to the use of the house and garden in conjunction
with the farming operation carried out by Mr Tyack on the ten acres, and
bearing in mind also what I think clearly emerges both from Mr Justice
Hodgson’s judgment, and indeed from section 109, subsection (2), that the mere
fact that Newlands itself is a dwellinghouse does not prevent it from being
agricultural land as defined.
As I have
sought to make clear, in my view the inspector’s approach was correct and that
of the learned judge was not. The conclusion of the inspector as a matter of
fact and degree that Newlands and its curtilage were not ‘agricultural land’
concludes the matter. There was no need to consider the second question: ‘What
was the extent of the agricultural land?’
In Mr Tyack’s
case I would therefore allow the appeal and restore the decision of the
inspector dismissing his appeal to the Secretary of State against the
enforcement notice.
STAUGHTON
LJ: I agree that the appeal in Hancock’s case
should be dismissed and the appeal in Tyack’s case allowed for the
reasons given by Glidewell LJ.
It is, I
think, of some importance that a purchaser of property should know what
protection he has against development on the other side of his fence. If he can
see by looking at it that the neighbouring land is not agricultural land, he
will know that he is not exposed to the risk of development under Class VI
without the approval of the planning authority. If, on the other hand, he can
see that the land next door is agricultural land of at least one acre in
extent, he will know that he is exposed to the risk of such development.
That
consideration seems to me to favour the view that the character of the
land, whether agricultural or not, should not depend on the profession or trade
of the person who lives in a house on the land; it also suggests that the
occupier of the neighbouring land should not too readily be able to aggregate
other land not immediately contiguous which happens also to be occupied by him
in order to reach the figure of one acre.
Accordingly, I
agree with the judgment of Glidewell LJ.
LORD
DONALDSON OF LYMINGTON MR: I also agree with the
disposal of these appeals in the manner indicated by my Lords and for the
reasons which they have indicated.
Appeal in Hancock dismissed
with costs against the Secretary of State; appeal in Tyack allowed with costs here
and below; application for leave to appeal to the House of Lords on behalf of
Mr Tyack refused.
