Redetermination of appeal against enforcement notice — Secretary of State and inspector reaching different conclusions on facts — Notice quashed — High Court dismissing appeal against that decision — No dispute on facts — Different conclusions drawn from same facts — Judgment for Secretary of State
An enforcement notice was issued by the council relating to land at Pentreath Lane, The Lizard, Cornwall. The alleged breaches of control were: the erection of buildings used for a mixed agricultural and incidental domestic purpose; and extension to such a building; and the laying of a concrete hardstanding. An appeal was determined by an inspector who decided that the matters alleged in the notice did not constitute a breach of planning control and quashed the notice. There was an appeal to the High Court. The matter was subsequently remitted to the Secretary of State, by consent, for redetermination. The second inspector decided that the land was not used for agriculture for the purpose of a trade or business, so that construction of the structures was not permitted. However, the Secretary of State concluded that the activities were, as a matter of fact and degree, the use of land for agriculture for the purposes of a trade or business and the land was “agricultural land” for the purposes of the Town and Country Planning General Development Order 1977 (now revoked). The notice was quashed.
The council appealed against that determination. The substantive issue was whether the land was being used for a trade or business when the development took place. Other aspects necessary to bring the development within the general development order were concluded favourably by the second inspector. The council argued that the Secretary of State and the inspector had differed on matters of fact so that, as a matter of fairness, the council should have had the opportunity to make further representations.
Held The appeal was dismissed.
1. The buildings and the hardstanding required planning permission (which they did not have) unless they were permitted under the 1977 general development order.
2. By virtue of Class VI in Schedule 1 to that order, there was a general planning permission to carry out, on “agricultural land” having an area of more than one acre and comprised in an agricultural unit, building or engineering operations requisite for the use of such land for the purposes of agriculture, subject to certain limitations. However, the development could not benefit from Class VI unless the land on which it was carried out was already “agricultural land”: see Jones v Metropolitan Borough of Stockport (1984) 269 EG 408.
3. In the present case, there was no disagreement between the Secretary of State and his inspector as to what was physically happening on the land at the material times. The difference was on the conclusions drawn from the same facts.
4. The Secretary of State had set out clearly the reasons for his finding that the activities at the site amounted to more than a hobby or mere eccentricity when the building was erected and when the development was carried out. He had applied the correct test, reminding himself that the low level of income was not in itself conclusive. His decision was not perverse: see McKay & Walker v Secretary of State for the Environment (1989) JPL 590.
Tobias Davey (instructed by Titmuss Sainer Dechert) appeared for the council; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent, Stevens, did not appear and was not represented.
