Town and country planning — Problems arising from a direction by a planning authority under article 4(1) of the Town and Country Planning General Development Order 1973 (for this purpose the same as article 4(1) of the 1977 order) — Construction of Class VI in Schedule 1 to the order — Claim for compensation under sections 164 and 165 of the Town and Country Planning Act 1971 for loss alleged to be caused by the effect of the direction in removing the planning permission given by Class VI — Land in question had never actually been used for agricultural purposes but had a potentiality for such use under section 22 of the 1971 Act — Permission to set up piggeries on the land refused — Question as to whether piggeries could have been built as permitted development under Class VI if it had not been for the direction — It was contended for claimant that Class VI permission was not restricted to cases where there was a subsisting agricultural use, but covered also prospective use — Court rejected this contention on the ground that the claimant’s land was not ‘agricultural land comprised in an agricultural unit’ at the relevant date — Important obiter observations on the meaning of ‘requisite’ in Class VI — ‘Vacillating’ interpretations given by Secretary of State — A ‘straightforward reading’ suggested, but court considered that Clause VI should be redrafted in the light of modern farming conditions and that the word ‘requisite’ should be avoided — Lawton LJ’s comparison with 16th-century theological controversy — Appeal by metropolitan borough allowed
These were two
appeals by case stated from decisions of the Lands Tribunal (R C Walmsley FRICS
and V G Wellings QC respectively), involving the same parties, Mrs Joan Jones
and the Metropolitan Borough of Stockport, Mrs Jones being the appellant in one
of the appeals and the metropolitan borough the respondent, with the roles
reversed in the other appeal. The appeals concerned an area of 2.05 acres of
land fronting on Wilmslow Road, Heald Green, Cheshire.
J Sullivan QC
and D N R Latham (instructed by S A Dobson, solicitor, Town Hall, Stockport)
appeared on behalf of the Metropolitan Borough of Stockport in both appeals;
Lionel Read QC and G Spafford (instructed by Ward Bowie, agents for Berg &
Co, of Manchester) represented Mrs Jones in both appeals.
Giving the
first judgment at the invitation of Lawton LJ, PURCHAS LJ said: At the request
of the parties we have heard both these appeals together. Both raise similar
points, arising out of similar facts, in relation to the application of the
same sections of the Town and Country Planning Act 1971 (‘the Act’) and the
Town and Country Planning General Development Orders 1973-77. The appeals are
references by way of case stated under section 3(4) of the Lands Tribunal Act
1949. That subsection provides that any determination of the Lands Tribunal
shall be final, but that it is open to a party aggrieved by a decision, as
being a decision which is erroneous on a point of law, to require the tribunal
to state and sign a case for the decision of the court; that is the procedure
under which these appeals have come before us.
It is
convenient to deal with the whole matter in reference to the questions posed in
the case stated in the appeal by the Stockport Metropolitan Borough Council, to
whom I shall refer as ‘the council’. Mr Sullivan, who appears for them in both
appeals, they being the appellants in the second appeal and the respondents in
the first appeal, has therefore opened the case; Mr Read, who appears for Mrs
Joan Jones, to whom I shall refer as ‘the claimant’ has responded, and the
matter has proceeded as one appeal.
The land in
question comprises two adjoining areas, each of just over one acre, the whole
area being 2.2 acres and situated to the east of, and fronting upon, Wilmslow
Road, Heald Green, Cheshire. The areas have been referred to in the Lands
Tribunal decisions as ‘the front land’ and ‘the rear land’, and I propose to
adopt the same descriptions. The appeals raise an interesting, but restricted,
point of construction of the General Development Orders which we have been told
has not been directly considered in this court before and which is of general
interest to landowners and planning authorities.
It is
necessary to refer in a little detail to the historical background and to the
legislative context. The history of the 2.2 acres is as follows. Originally
they formed part of a commercial farm of some 27 acres and were used for cattle
grazing; the whole 27 acres were farmed by a tenant farmer. There is no dispute
between the parties that at that time buildings would have been permitted under
the General Development Order of 1950. Mr Williams, who I think is the father,
although at one point he was referred to as the uncle, of the claimant, bought
the 2.2 acres only in March of 1960. On March 30 1960 Mr Williams, by agreement
with the Cheshire County Council, dedicated much of the land for the purpose of
road improvement. During 11 years the council made no use of the land and nor
did anyone else, although Mr Williams permitted on part of the rear land, which
had not been dedicated, the production of a crop of hay but, as the Lands
Tribunal member commented, not for commercial purposes. Later, at some time in
1974, after the dedicated part of the 2.2 acres had returned to the ownership
of Mr Williams, there was some forking over of the land, but again no
suggestion that this was farming in a commercial sense in any way. The land
dedicated was reconveyed on June 30 1971.
I take the
remaining history from the decision of Mr Wellings, whose decision related to
the back land.
Between 1971
and 1975 Mr Williams made a number of applications to the local planning
authority for planning permission to develop the 2.2 acres or some part or
parts thereof for a variety of purposes, namely, the erection of an office
block, residential development, to increase the width of an existing access, to
create a vehicle crossing and to build multi-storey offices. All the
applications were refused but in all of them Mr Williams described the land in
question as ‘vacant land’.
On or about
July 25 1975, Mr Williams decided to treat the 2.2 acres as two separate pieces
of land, each of 1.1 acres, that is to say, the front land and the rear land,
and he then entered into discussions with the district council with a view to
developing each such portion separately as the site of an intensive piggery.
He conveyed
both pieces of land to his daughter, the claimant, in August 1975.
Mr Williams
is and has been a builder and has never been farmer and neither he nor the
claimant has ever made any agricultural use whatsoever of the front land or
rear land or any part or parts of them.
For a farmer
seeking to make a living from the rear land, or indeed the 2.2 acres, as his
sole source of income, it would be necessary to adopt an intensive farming
system. This would limit the type of farming available to intensive livestock
husbandry, pigs or poultry, or intensive horticulture, all of which require
substantial buildings.
The rear land
is (and the 2.2 acres are) too small to be economically viable for arable
cropping or mowing for hay.
An intensive
piggery of the type proposed by the claimant for the rear land would cater for
some 160 sows which, with the aid of seven boars, would produce 3,340 weaners
for sale per annum. The proposed building will cover one tenth of an acre.
The balance
of the rear land would be insufficient to provide all the food which the pigs
in the piggery would need. This is because, after deducting from the area of
the rear land, the area of the site of the building, and turning areas for
tractors and the area of land used for roadways, the balance available for
cropping would be three quarters of an acre merely, which, after
require dry food) would produce less than one tenth of the food needed by the
pigs in the piggery.
Turning for a
moment to the relevant statutory provisions, these are to be found in the
following sections of the Act.
Section 22(1)
provides as follows:
In this Act,
except where the context otherwise requires, ‘development’, subject to the
following provisions of this section, means the carrying out of building —
and then other
operations which are not relevant —
in, on, over
or under land, or the making of any material change in use of any buildings or
other land.
Section 22(2)
provides a number of operations, or uses of land, which
. . . 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.
Section 24
provides for the making of development orders. Section 24(2)(a) provides for
the making of orders granting planning permission for the development specified
in the order, or for the development of any class specified.
Section
24(2)(b) deals with individual planning applications, which are not relevant to
this appeal.
Section
24(5)(b) provides that:
Where
planning permission is granted by a development order for development of a
specified class, the order may enable the Secretary of State or the local
planning authority to direct that the permission shall not apply either in
relation to development in a particular area or in relation to any particular
development.
Under those powers
the Secretary of State has made the General Development Orders to which I have
referred. The terms of the 1977 Order and the 1973 Order are, for the purposes
of this appeal, equivalent and I propose to deal with the 1977 General
Development Order, which is SI 1977 No 289. It is necessary to refer only to a
few provisions of that order. Article 2(1) contains the interpretation
provisions. ‘Agricultural land’ and ‘agricultural unit’ are defined by
reference to the Agriculture Act of 1947. The definition of ‘agricultural land’
in section 109(1) of the Act of 1947 is as follows:
In this Act
the expression ‘agricultural land’ means land used for agriculture which is so
used for the purposes of a trade or business, or which is designated by the
Minister for the purpose of this subsection, and includes any land so
designated as land which in the opinion of the Minister ought to be brought
into use for agriculture,
and then there
are provisos which are not relevant.
Section 109(2)
provides:
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
(b) any other land falling within the definition
in this Act of the expression ‘agricultural land’ which is in the occupation of
the same person, being land as to which the Minister is satisfied that having
regard to the character and situation thereof and other relevant circumstances
it ought in the interests of full and efficient production to be farmed in
conjunction with the agricultural unit, and directs accordingly.
There is no
relevant direction in this case, so that the definitions of ‘agricultural land’
and ‘agricultural unit’ stand as cited in that section.
Subsection (3)
of section 109 defines ‘agriculture’ as including
horticulture,
fruit growing, seed growing, dairy farming and livestock breeding and keeping,
the use of land as grazing land, meadow land, osier land, market gardens and nursery
grounds, and the use of land for woodlands where that use is ancillary to the
farming of land for other agricultural purposes and ‘agricultural’ shall be
construed accordingly.
Article 3(1)
of the General Development Order provides as follows:
Subject to
the subsequent provisions of this order, development of any class specified in
Schedule 1 to this order is permitted by this order and may be undertaken upon
land to which this order applies, without the permission of the local planning
authority or of the Secretary of State.
Article 4(1)
provides as follows:
If either the
Secretary of State or the appropriate local planning authority is satisfied
that it is expedient that development of any of the classes specified in
Schedule 1 to this order should not be carried out in any particular area, or
that any particular development of any of those classes should not be carried
out, unless permission is granted on an application in that behalf, the
Secretary of State or the appropriate local planning authority may direct that
the permission granted by article 3 of this order shall not apply to:
(a) all or any development of all or any of
those classes in any particular area specified in the direction, or
(b) any particular development, specified in the
direction, falling within any of those classes.
I pause to
comment that the General Development Order deals with permitted development,
whereas section 22 of the Act deals with activities deemed not to be development.
On March 19
1976 the council made such a direction in relation to the 2.2 acres of land;
this was duly confirmed by the Secretary of State, and became effective from
the date upon which it was served, which was July 6 1976. In the schedules to
that direction the First Schedule excluded
The carrying
out on agricultural land of building or engineering operations being
development described in Paragraph I of Class VI of the First Schedule to the
Town and Country Planning General Development Order 1973 and not being
development comprised within any other class,
and the Second
Schedule refers particularly to the 2.05 acres which is the land the
subject-matter of these two appeals.
I must now
return to read the Schedule to the General Development Order where it deals
with Class VI development. The heading is ‘Class VI — Agricultural Buildings,
Works and Uses’, and it 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 (other than the placing on
land of structures not designed for those purposes or the provision and
alteration of dwellings), so long as —
there then
follow various dimensional restrictions, the details of which need not be set
out in this judgment.
The remaining
provisions to which I should refer are contained in the Town and Country
Planning Act, and deal with the rights that may accrue to an owner of land,
using it for agricultural purposes, where such a direction is made. I turn to
section 165 of the Act, which provides as follows:
(1) The provisions of this section shall have
effect where —
(a) planning permission for the development of
land has been granted by a development order; and
(b) that permission is withdrawn, whether by the
revocation or amendment of the order or by the issue of directions under powers
in that behalf conferred by the order; and
(c) on an application made in that behalf under
Part III of this Act, planning permission for that development is refused, or
is granted subject to conditions other than those previously imposed by the
development order.
Subsection (2)
provides:
In any case
falling within subsection (1) of this section, the provisions of section 164 of
this Act shall apply.
I can merely
refer to that section by saying that if the provisions of section 165 are
satisfied and the claimant proves that he has incurred expenditure in carrying
out work which is rendered abortive by the revocation of the consent, or has
otherwise sustained loss or damage which is directly attributable to the
revocation, then he may claim and receive compensation under conditions and in
circumstances with which it is not necessary to deal in this judgment.
On January 30
1979 the claimant applied to the council for planning consent on two separate
applications relating respectively to the front and the rear lands. Both were
dated the same date and sought planning permission for ‘the erection of a
piggery’.
On March 8 1979
the council communicated formal refusals of both applications, and claims were
then made by letter on March 26 1979 in person and by a solicitors’ letter on
April 23 1979. Both those letters made claims for compensation in respect of
both of the refusals; that is to say, in respect of both the front and the rear
lands.
Matters then
took a course which cannot be described as satisfactory, but the explanation is
not available to us, although we have had some assistance from learned counsel.
There was a reference to the Lands Tribunal on August 31 1979; the next formal
step which is recorded is some order, which is not before us, of the Lands
Tribunal itself, dated October 3 1980. But the net result of these events is as
follows: there was a hearing by a single member of the tribunal in relation to
the refusal of planning consent on the front land. This was conducted by Mr R C
Walmsley FRICS on April 7-8 1981, in respect of which he gave a decision at
Stretford on April 30 1981. It will be necessary to return in a little more
detail to that
to compensation in respect of the front land.
There was then
a hearing in relation to the rear land over a year later, on May 17-18 1982.
The hearing was by Mr V G Wellings QC, whose decision was given on September 7
1982. In fairness to Mr Wellings I must state that it is clear from his
decision that he had withheld delivering it because he had understood that
there was an appeal pending in relation to the decision of Mr Walmsley, and
very sensibly he postponed for some time — I suspect during the summer of 1982
— the delivery of his decision. But the appeal did not come on, so his decision
was then published; again I shall have to return in a little detail to that
decision, but he held that the claimant was entitled to compensation in respect
of the rear land. Both members have, at the instance of the disappointed party
in their respective cases, stated cases under section 3(4) of the Lands Tribunal
Act.
It will now be
necessary to consider each decision shortly in turn. The decision in relation
to the front land is in the papers before us starting at p 102. It is not
necessary for me to refer to the early pages of that decision; the single
member sets out the statutory background and the contentions of the parties.
Put shortly, the case proposed by the claimant on that occasion was that
planning consent had been granted in respect of the site by the General
Development Order of 1950. That order came into effect on May 22 1950. That
permission was not subject to any time-limit and therefore was a subsisting
basis for a claim in respect of the article 4 direction. I pause to comment
that Mr Read has not pursued that line of argument before us.
Mr Walmsley
then considered the necessary criteria which the claimant must establish before
recovery. These are set out at p 106; they were that the building was to be on
‘agricultural land’; and that it was to have an area of more than one acre;
that it was to be comprised in an agricultural unit, and was requisite for the
use of that land for the purposes of agriculture.
I can pass
over the first three criteria, except to say that the member declared that he
was satisfied that in 1950 the application site was on agricultural land, and
then passed to consider the fourth criterion, whether the building was
‘requisite for the use of that land for the purposes of agriculture’.
Mr Walmsley
came to the conclusion that the claimant failed inter alia because he
did not establish that the building was ‘requisite for the use of the land’
and, approaching this task, he adopted a method of analysis which related to
the use of the land and compared it with the use of the building. He came to
the conclusion that he was unable to accept the claimant’s fundamental premise
that the land in question had been granted permission for proposed planning
development in 1950, taking the view on the evidence that the erection of the
building did not come within the scope of the permission granted by Article 3
of the General Development Order 1950, since in his opinion
. . . a
building required for the accommodation of livestock which do not depend to any
material extent on the land the subject of the planning application cannot be
regarded as ‘requisite for the use of that land for the purposes of
agriculture’.
The case
proposed by the council was that the front land, and also in due course the
rear land, failed to qualify as agricultural land. This case found favour with
the single member; I read from p 110:
As regards
the question of whether or not the application site is ‘agricultural land’,
there is no evidence of any ‘agricultural’ use during the period 1960 to 1974.
In 1974 there was some forking of part of the land, but I do not myself regard
this token activity as constituting a use of the land for ‘agriculture’. And,
even were I to hold otherwise, the application site would not thereby become
‘agricultural land’ because there is no evidence that either in 1974 or at any
time thereafter it was ‘used for the purposes of a trade or business’.
So the single
member rejected the claimant’s claim on two grounds, namely that at the
material time the land was not agricultural land, and also that in any event
the use of the building would not be ‘requisite’ for the agricultural use of
the unit.
I come now to
the decision in relation to the rear land, that of Mr Wellings. Again I can
pass over the early pages of that decision, which starts at p 7 of our bundle.
Mr Spafford, who appeared for the claimant, relied on a decision in a planning
appeal by the Secretary of State, which is cited in the decision. I do not
propose to repeat it in this judgment, but the quotation reflects a change of
the Secretary of State’s attitude with regard to the dependence of the building
under the definition of ‘requisite’ upon the agricultural use of the remainder
of the land. The Secretary of State was then expressing the view that the test
is satisfied provided that the building is required for the purpose of the overall
use of the land for agriculture and that the requirement is met irrespective of
whether the building or works relating to the livestock, and the livestock in
question, are themselves to be in any way dependent on the land. That was the
basis of the claimant’s contention before Mr Wellings.
Mr Latham, who
appeared for the council, contended that the purchase by Mr Williams of the 2.2
acres in 1960 created a new planning unit. He further contended that there was
no actual use of the land for agricultural purposes and that therefore it was
not agricultural land at the material time; and further that the proposed
piggery was not requisite for the pre-existing agricultural use of the land in
any event. He relied upon the case of Newbury District Council v Secretary
of State for the Environment [1981] AC 578.
In his
decision Mr Wellings said, in a portion of his decision which I propose to
cite:
The primary
question in the present case is whether there was any loss or damage which was
directly attributable to the revocation of the Class VI permission. Since the
alleged loss or damage takes the form of depreciation in the value of the rear
land that loss would seem to be measured by the difference in the amount which
the land, if sold in the open market by a willing seller, might be expected to
realise on the assumptions respectively that there had been no revocation of
the General Development Order permission and that such revocation had taken
place (that is to say the difference between the before and after values).
He refers to
the sections of the Act which are appropriate and goes on:
Having regard
to these considerations the earliest date capable of constituting the valuation
date would seem to be the date on which the Article 4 direction took effect,
namely, July 6 1976. By that date all farming activity on the rear land and
indeed the 2.2 acres had long since ceased and I have no doubt that it had been
abandoned. However that is not an end of the matter, because the purchaser in
the open market would know that he would not need planning permission in order
to set up an agricultural use on the rear land: section 22(2)(e) of the Act of
1971 expressly says so.
I cannot
accept that the Class VI permission in the General Development Orders applies
only where there is an existing agricultural use. In my judgment it applies
also where the use is prospective. Thus the purchaser in the open market (in
the before-situation) will know that although there has been abandonment of
farming use he can himself use the land for agriculture and will have the
benefit of the Class VI permission in respect of buildings which he needs for
the purposes of that use. Thus he will know that if he decides to use the land
for grazing he will have permission to erect a cattle shelter, that if he
decides to use it for growing a crop of hay he will be entitled to erect a
dutch barn and that if he decides that economically the best use of the land is
to use it for intensive breeding of pigs or other animals he will have
permission to erect an appropriate piggery, provided, in each case, that the
buildings in question are requisite for the use of the land for the purposes of
agriculture, and that the land, when so used, will be comprised in an
agricultural unit.
The word
‘requisite’ is defined in the Shorter Oxford English Dictionary as
‘required by circumstances or the nature of things’. Having regard to my
findings of fact nos (11) and (12), an intensive piggery of the type proposed
by the claimant for the rear land is at any time as at which the question may
be considered, required by the nature of things for the purposes of
agriculture. The purchaser in the open market would regard the adoption of an
intensive farming system, not only as reasonable, but as essential. Such a
farming system constitutes ‘livestock breeding and keeping’ and is an
agricultural use. It cannot be carried on except in a building of substantial
proportions. It necessarily follows that the erection of an intensive piggery
on the rear land is requisite for the use of that land for the purposes of
agriculture. The purchaser in the open market would take that view and I so
hold. I am of the opinion that the test postulated by the Secretary of State in
the planning decision reported in (1982) Journal of Planning Law 126 is correct.
On that basis
the single member did not find it necessary to consider in detail the question,
now abandoned by Mr Read, relating to the General Development Order in 1950,
although on p 18 of the bundle he does go so far as to say that if he had to
deal with that matter his decision would not be altered.
I should add
this comment: Mr Read abandoned that specific question of the continuation of
planning consent under the 1950 General Development Order, but sought to rely
on the existence of that consent at an earlier stage as still attaching to the
land in order to give it a description of ‘agricultural land’ because at no
time in the meanwhile had any other use been made of the land which would
constitute an abandonment. Mr Read rightly points to the 11 years when the land
was dedicated, or part of it, and so on. I mention that so that it should not
be thought that I have overlooked the limited nature of the concession made by
Mr Read.
The cases
stated by each of the two single members raise a number of questions, but both
appeals can conveniently be dealt with by reference to the case stated by Mr
Wellings and the questions raised therein. They are four in number; I shall
return to them later and give answers as I consider they ought to be, in the
context of this judgment. The argument before us centred on two aspects of the
construction of the Class VI order. Mr Read, in an attractive argument in
support of the rear land decision by Mr Wellings, urged upon us that for
compensation purposes it is not relevant to consider the existing use of the
land; any land can be used for agricultural purposes without invoking
development, which in turn requires planning permission unless dispensed with
under a General Development Order or some other order. Therefore, repeating to
a large extent the arguments that were put before Mr Wellings and which clearly
found favour with him in the extract from the decision which I have cited, Mr
Read urged upon us that the right to benefit from Class VI of the General
Development Order, Schedule 1, is attached to the land as such; whether that
land is in fact being used already for agricultural purposes or whether there
is an agricultural use in prospect is not relevant for the purposes of sections
164 and 165 of the Act. He submits this because the removal of the right to
erect a building under the General Development Order depreciates the value of
the land and is therefore something which affects the quality and value of the
land regardless of the use to which it is being put for the time being.
Therefore there ought to be compensation for that depreciation of the land
regardless of the current use. I hope I have summarised Mr Read’s attractive
argument reasonably accurately. He cited examples which would appear to be
absurd or unusual if the interpretation of the article and Schedule were
otherwise. He cited an example of a person, in order to be able to erect a
building on land for intensive agricultural purposes, qualifying to do so if he
first started a bona fide commercial activity on the land not involving
buildings, eg fattening table poultry, so that in due course of time he could
proceed to erect a building. Mr Read submitted that that was not a logical
approach that would be acceptable to Parliament.
Mr Sullivan,
on the other hand, read into the words of Class VI the definition of
‘agricultural land’ contained in the Agriculture Act of 1947, and agricultural
land is, I repeat, ‘land used for agriculture which is so used for the purposes
of a trade or business’. Mr Sullivan submitted that when that definition is
read into the words of Class VI of the General Development Order, there is no
room to import some prospective element in the words of that Class; the
definition in the Act of 1947 does not say ‘proposed’ or use the words ‘to be
used’, and he therefore submitted that the claimant fails to surmount the first
hurdle in section 165 of the Act, namely that there was a planning permission
for the development of land which had been granted by a Development Order.
I agree with Mr
Sullivan’s submissions on this part of the case. I can see no room for the
importation into the words of Class VI of any other definition or qualification
of the words ‘the carrying out on agricultural land’. The definition of
agricultural land imported from the Act clearly demands an existing use for
agriculture.
That would be
sufficient to dispose of these two appeals, but because of the difficult
position which has clearly arisen during recent years, and the indication from
the Bar that some decision of this court on the proper construction of the
remainder of the words of Class VI in Schedule 1 would be welcome, I propose to
say something further about the second area of argument in this appeal, which
centres on the meaning of the word ‘requisite’ in the phrase ‘building or
engineering operations requisite for the use of that land for the purposes of
agriculture’.
It is helpful
to view for a moment the background and context of that particular Class VI
order. Planning control in its present form originated in the Town and Country
Planning Act 1947 and control by general development order started with the
Town and Country Planning (General Development Order) 1948. That order granted
permissions in Article 3(1) by reference to a Schedule which had an equivalent
Class VI. This merely provided as follows:
Class VI;
agricultural buildings, works and uses. (1) The erection, or construction on
land used for the purposes of agriculture.
And then there
are some dimensional and other limitations imposed within the body of the
Schedule. It is to be noticed in passing that the land upon which the
development was permitted had to be land ‘used for the purposes of
agriculture’.
As my Lord,
Lawton LJ, said during the course of argument, farming proceedings since the
time when that first General Development Order was granted have undergone a
near revolution, particularly in respect of what is known as intensive
livestock farming. Unhappily, the developments in the farming activities have
not been reflected in the drafting of successive General Development Orders
since 1948. The 1950 General Development Order, to which we have been referred
during argument, is in very nearly equivalent terms to the 1973 and 1977
Orders. That introduced the words ‘agricultural land’ for the first time, and
referred to ‘the carrying out on agricultural land having an area of more than
one acre’ and so on. It is almost similar; the difference is that the
dimensional limitations are translated from the body of the order to a column
described as ‘Conditions’, from which they return in due course in the later
General Development Orders.
In my
respectful judgment, the result of the omission to adjust the wording of the
Schedule in relation to Class VI has meant, in effect, that the statutory
provisions have fallen far behind developments in the farming world to which
they relate. As a result, in 1983 this court has to struggle to interpret the
anachronistic phraseology, which is out of step with the present practical
agricultural context. It may well be that those who are responsible for these
matters might consider that the time has come when there ought to be a fresh
look, in any event, at the wording of Class VI of Schedule 1 to the existing
General Development Order. In my judgment it appears from what we have been
told, and from the documents to which we have been referred, that a somewhat
artificial approach had grown up over the years to deal with the interpretation
of the word ‘requisite’. It is not necessary to detail the various opinions expressed
by the Secretary of State, or on his behalf, as to the meaning of the word
‘requisite’ in this context. Very properly the Secretary of State prefaces any
opinion with the comment that the interpretation is ultimately a matter for the
court; but by the very nature of the provisions of the town and country
planning legislation, which has introduced between the developer and the courts
a system of quasi-judicial decisions and appeals under the supervision of the
department, it is important to achieve consistency of decision in these
matters.
The views
apparently expressed by, or on behalf of, the Secretary of State, either in
appeal decisions or in articles or letters can, with great respect, only be
described as vacillating. The range over which the variations have taken place
from time to time extends from an interpretation of the word ‘requisite’ which
involves that the use to which the building is to be put must be ancillary, and
directly connected, to the use of the rest of the land at one end, to the view
which was relied upon by Mr Latham, to which I have already referred, at the
other.
As Hallett J
commented in relation to the word ‘required’ in Nuthall Ltd v Entertainments
& General Investments Corporation Ltd [1947] 2 All ER 384 at p 392,
‘required’ (and in my judgment ‘requisite’ also) is an ambiguous term and is an
unsatisfactory one against which to attempt to construe some kind of definitive
relationship between the building and the land involved. The courts have
attempted this, particularly in the case of R v Secretary of State
for the Environment and Buckinghamshire CC, ex parte Powis [1981] 1 WLR
584, in which there was a very careful analysis of the range of meanings which
could be put to the word ‘requisite’.
Before us, Mr
Sullivan has not pursued the extremes of that spectrum, but is content that the
meaning should be ‘reasonably required’; but his submission does involve that
the rest of the land, other than the land upon which the building is placed,
must have for itself an independent viable agricultural existence. Where one is
dealing with intensive agriculture of the sort with which these applications
were involved, that is something which can never be achieved; this was
demonstrated in the decision of Mr Wellings.
But Mr
Sullivan submits that, to use a synonym or an analogy, whatever else is meant
by ‘requisite’ in relation to the building and the land, the land must not
become requisite for the use of the building, but the building must always be
requisite for the use of the land.
During his
submissions Mr Sullivan put the matter in another way, in a very attractive and
helpful argument for which I express my gratitude, that there must be a
dominant use in the land to which the use of the building is either
subservient, ancillary or in some other way connected in that sense.
Mr Read, on
the other hand, submitted with considerable force
differing approaches of the minister and others, the time had come for a return
to a straightforward reading of the words of Class VI, an exercise which I have
already carried out in relation to the earlier part, namely the definition of
‘agricultural land’. If Class VI is read in a direct manner, there is no
mandate in the words of Class VI(1) for a separation of the land on which the
building is sited, or is to be sited, and the land around it, notwithstanding
that in this case the building will occupy 1/10th and the rest of the land will
be 9/10ths. When one reads the expression ‘agricultural land having an area of
more than one acre and comprised in an agricultural unit’, and ‘building . . .
operations requisite for the use of that land for the purposes of agriculture’,
in my judgment the plain and ordinary meaning of those words is that the land
to be used for the purposes of agriculture is the whole of the land, including
the land under the building and the land around the building, and that nothing
more is meant than that the building is requisite for the use of the land as a
unit, which of course includes the building and the intensive operation being
carried on in the building, which is itself sufficient to constitute an
agricultural unit within the definition in the 1947 Act, adjusted appropriately
to the modern conditions of intensive farming.
If that is so,
for my part I would support the approach to, and definition of, the expression
‘building . . . operations requisite for the use of that land for the purposes
of agriculture’ to include an operation which was either wholly or substantially
contained within the building. In the case of horticulture the whole operation
may well be under glass. In the case of an intensive piggery the great majority
of the operations will be in the building, although there might be ancillary
operations outside in connection with it. In the context of this particular
case, and the findings of Mr Wellings, the operations outside the building will
be only very subsidiary indeed, but in my judgment that would not be sufficient
to take the erection of the building outside the meaning of Class VI(1) of the
First Schedule to this General Development Order. Thus there may be, as Mr
Sullivan has submitted in support of his argument, a danger of an owner of land
of a small area using that land for a bona fide agricultural purpose for a
period of time and then converting his use of the land by building to an
intensive horticultural use on the one hand, or a piggery or for battery hens
on the other, using this Development Order to achieve something which was probably
never in the contemplation of the draftsman, or of Parliament — when the orders
first started in 1948, or indeed in 1950. But, as I have already indicated,
that is the direct result of the fact that the drafting of the order has not
kept pace with the development of agricultural operations over the period since
1948.
I turn now to
the question posed on p 6 of our bundle by Mr Wellings under para 4:
The question
upon which the decision of the Honourable Court is desired is whether I erred
in law;
1. in determining that the primary question
was whether there was any loss or damage which was directly attributable to the
revocation of the Class VI permission —
that has not
been attacked by Mr Sullivan, who says that the court should answer that
question in the negative and I so do.
Question 2:
In
determining that, even though the land was not at any material time after 1960
agricultural land comprised in an agricultural unit within the appropriate
meanings for the purposes of the Town and Country Planning General Development
Order 1973, it was nonetheless land to which Section 165(1) of the Town and
Country Planning Act 1971 applied.
I answer that
question in the affirmative, for the reason I have already given in my
judgment, namely that section 165(1)(a) is not satisfied by the claimant in Mr
Wellings’ case.
The third
question is:
In concluding
that on the facts found, the proposed building operation was requisite for the
use of that land for the purposes of agriculture on a proper construction of
Class VI in Schedule 1 to the Town and Country Planning General Development
Order 1973.
To that
question I cannot satisfactorily give a single-word answer; for the reasons
that appear from my judgment, I do not think it would be helpful to give a
qualified answer, other than that for the reasons I have stated the claimant
fails because it is not established that it was agricultural land and therefore
did not fall within Class VI. The hypothetical answer, if that land had been
agricultural land, might well have produced a different answer to question 3.
For those
reasons I would allow the appeal of the Stockport Metropolitan Borough Council
against Joan Jones, but I would dismiss the appeal of Joan Jones against the
Stockport Metropolitan Borough Council.
Agreeing, DILLON
LJ said: To obtain compensation the claimant has to show that, had the Article
4 direction not been made, the two piggeries for which planning applications
were made in 1979 could have been built as permitted development under Class VI
of the General Development Order without the need for any planning permission
or planning application. The date at which this would have to be shown must be,
at the earliest, the date when the Article 4 directions came into force and, at
latest, the date of the hearing of the reference by the Lands Tribunal. In the
present case it is unnecessary to pinpoint the date further, because there was
no relevant change of circumstances between those two dates.
It is then
necessary to consider what is authorised under Class VI. The wording does not
simply say ‘the carrying out on land having an area of more than one acre of
building or engineering operations requisite to the use of that land for the
purposes of agriculture’; it is qualified and provides only for the carrying out
on ‘agricultural’ land having the requisite area ‘and comprised in an
agricultural unit’ of such buildings or engineering operations. The reference
to the land being comprised in an agricultural unit means that it must be land
which is occupied as a unit for agricultural purposes. Therefore it is
necessary to consider whether this land was at the relevant date ‘agricultural
land comprised in an agricultural unit’.
It could
indeed, by virtue of section 22 of the Act, have been used for agricultural
purposes without any development being involved, but it was not then used for
any agricultural purposes; it had not been used for agricultural purposes since
1960.
In my
judgment, therefore, it inevitably follows that the claimant’s claims for
compensation must fail because neither the front land nor the rear land was
‘agricultural land comprised in an agricultural unit’ at the relevant date. In
this respect, therefore, I agree with that part of the decision of Mr Walmsley
and disagree, with all respect, with the contrary view expressed by Mr
Wellings. The land does not become agricultural land comprised in an
agricultural unit within the meaning of Class VI by the mere fact that it could
have been used for agriculture but was not.
There is then
the question, to which Purchas LJ has referred, of the meaning in Class VI of
the phrase ‘requisite for the use of that land for the purposes of
agriculture’. ‘Requisite’ in that context cannot, as it seems to me, mean
‘indispensable’ or ‘absolutely necessary’; it must mean ‘reasonably necessary’
or ‘reasonably required’. Then what is the land? ‘Requisite for the use of that land’ must
mean the land having an area of more than one acre and comprised in an
agricultural unit, which has been referred to in the opening words of Class VI.
That must include the site of the proposed building and not merely the
assumedly open land which surrounds it.
The use must
be ‘for agriculture’; ‘agriculture’ is widely defined to include horticulture,
and there is nothing to exclude use for agriculture or horticulture of an
intensive nature — a term which anyhow is relative.
It seems to me
that there is no basis for implying a limitation that the use of the building
must be ancillary to the use of the parts of the land on which the building is
not put, or that the use of the building must be in some way dependent on the
use of the parts of the land on which the building is not put. That would
create enormous difficulties in the application of Class VI to horticulture,
where glasshouses are commonly required, and indeed were commonly required,
even in 1950, for the raising of plants for the market which were not going to
be bedded out in the surrounding open land, and really have nothing to do with
the other plants grown on the open land, except that they are part of the same
horticultural business. Moreover, the dependence, or ancillary, test would
raise difficulties in the case where both what was done in the building and
what was done on the open land were really of equal importance for agricultural
purposes, as may well be the case in dairy farming. I think, while the wording
of Class VI remains as it is, it is important to keep to a straightforward
interpretation of the words actually used, and consider in each case whether
the carrying out on the relevant agricultural land of the building operation
proposed is ‘requisite’ in the sense of ‘reasonably necessary’ for the use of
that
glosses to the words used in the definition of Class VI; but I entirely agree
with Purchas LJ that it is desirable that a close look should be given to the
possible redrafting of Class VI in the light of modern agricultural, including
horticultural, conditions and the sort of buildings that are now required for
agricultural and horticultural purposes.
I agree that
the appeal against the decision of Mr Walmsley should be dismissed and that the
appeal against the decision of Mr Wellings should be allowed.
Agreeing with
both judgments, LAWTON LJ said: Like my brethren, I find the wording of Class
VI of the Schedule to the 1977 General Development Order unsatisfactory,
particularly in relation to present-day methods of intensive animal husbandry.
Having heard
the arguments put forward by Mr Sullivan for the planning authority and by Mr
Read for the landowner, it seems to me that if a revision is not soon made,
some of those engaged in horticulture may be put at a disadvantage, and those
who have mind to take part in intensive animal husbandry may be in a position
to make claims for compensation which many would regard as unmeritorious.
If there is a
redrafting of Class VI, I respectfully suggest that the word ‘requisite’ should
be avoided. There are semantic difficulties inherent in the use of that word.
Those difficulties are neatly illustrated by the example which is given in the Shorter
Oxford English Dictionary to show the meaning of the word. That example
comes from one of the theological works of Sir Thomas More and is in these
terms: ‘There are two poynters requisite unto saluacion’. He and Martin Luther
could never agree what they were, and Zwingli and Calvin were not altogether in
accord with Luther. It seems to me that Sir Thomas More, Luther, Zwingli and
Calvin have their modern counterparts in the Department of the Environment,
because in the last three years three different meanings have been given to the
word ‘requisite’. Clearly it is time that word was avoided.
I, too, agree
with the order suggested by my brethren.
The appeal by
the metropolitan borough was allowed and the appeal by Mrs Jones dismissed.
Leave to appeal to the House of Lords was refused to Mrs Jones.
