Planning condition — Erection of house in 1965 — Agricultural occupancy condition — Application to remove condition refused — Secretary of State dismisses appeal — Whether inspector applied correct test — Whether actual circumstances relevant — Whether green belt policies apply
In 1965 the late Mr Millbank was granted
planning permission for the erection of 225 Wakering Road, Great Wakering,
Essex, a substantial four-bedroomed house. As the area was in the green belt,
permission was granted subject to a condition that the occupation of the
dwelling shall be limited to persons employed or last employed in agriculture
or in forestry. At the time, Mr Millbank farmed 102 acres which he owned and a
further 483 acres which he rented. In 1975 he conveyed the 102 acres to his
son, surrendered the rented land, and retired from farming; he continued to
live in no 225 until his death in 1983 and thereafter his widow occupied the
house until she died in January 1987. The son farms the 102 acres from his own
house some distance away.
The executors of the late Mr Millbank
found they could not sell no 225 with the agricultural occupancy condition.
They applied to the Rochford District Council, the second respondent, for the
removal or relaxation of the condition, and that application was not determined.
The executors’ application to the High Court to have quashed the decision of
the Secretary of State for the Environment, by his inspector dated March 10
1988 dismissing their appeal against the second respondent’s decision, was
allowed by His Honour Judge Marder QC, sitting as a deputy judge of the Queen’s
Bench Division on September 28 1988. The inspector considered that the house
could be reintegrated into the farming of the 102 acres. In quashing the
decision, the learned judge decided that the inspector had failed to make a
realistic assessment of the continuing agricultural need for no 225 for
agricultural purposes, and the inspector’s conclusions that either the house
could be used in connection with some adjoining nursery land or an agricultural
worker might be found after an extended advertising campaign were too
speculative. The first respondent appealed, contending that the learned judge
applied the wrong test; he should have confined himself to considering whether
the applicant had satisfied the inspector in terms of the normal planning
assumptions applying to green belt, development and land usage so as to justify
the removal of the condition, whereas the learned judge wrongly considered the
actual intention of the owner and the actual circumstances prevailing at the
time of the appeal.
The appeal was dismissed.
The inspector’s decision was flawed. The
correct test is laid down in Circular 1/85; there was no justification for the
idea that the house could be reintegrated into the farming of the 102 acres
which are left. It was pure speculation as to whether somebody connected with a
possible expansion of the nursery business nearby might need a house, and it
was unreal to suppose that a very narrow expansion of the occupancy condition
would produce a suitable purchaser: see p 22D.
Per Bingham LJ: The inspector’s decision may
have been one to which he could have come in that he was properly concerned
primarily with the use of the land and not with the personal circumstances of
any particular party. However, it was difficult to know on what basis he
reached his decision. If he had concluded that farming conditions had so
changed since 1965 that there
there was an agricultural community in the locality but there was no reasonable
prospect that any member would ever occupy the house, he would no doubt have
quashed the condition: see p 24.
Appeal against a decision of His Honour
Judge Marder QC
This was an appeal by the Secretary of
State for the Environment against a decision of His Honour Judge Marder QC
(sitting as a judge of the High Court) whereby he quashed a decision of the
Secretary of State, by his inspector, who had dismissed an appeal by the
executors of the late Mr B Millbank against the failure of Rochford District
Council to make a determination on an application to remove a planning
condition.
Treasury Solicitor) appeared for the appellant, the Secretary of State for the
Environment.
& Janes, of Southend-on-Sea) appeared for the respondent executors.
Council, did not appear and was not represented.
O’CONNOR LJ: This is an appeal by the Secretary of
State for the Environment from a decision of His Honour Judge Marder QC,
sitting as a judge of the High Court, given on September 28 1988, when he
quashed an inspector’s decision on an appeal to the Secretary of State because
the local planning authority had refused to consider in time an application by
the applicants to discharge an agricultural occupancy condition which had been
imposed upon 225 Wakering Road, Great Wakering, in Essex, when planning
permission was given to the building of that house in 1965.
The facts of the matter can be stated
very shortly from the decision letter. In 1965 the late Mr Millbank was farming
102 acres which he owned and 483 acres which he rented, and he had not got a
farmhouse. He applied for permission to build a four-bedroom substantial house
for his farm, and permission was granted, although the area was in the green
belt, and not surprisingly an agricultural occupancy condition was attached to
the planning permission. It read:
The occupation of the dwelling hereby
permitted shall be limited to persons employed or last employed, locally in
agriculture as defined in section 221 of the Town and Country Planning Act 1962
or in forestry.
In due course the late Mr Millbank
retired from farming. Before he did so, it seems that the 483 acres which he
rented were given up at some stage; 223 of those acres were developed for
residential purposes, and the balance of some 260 acres was taken over by the
Ministry of Defence. We do not know what the ministry did or does with the
land. The 102 acres continued to be worked from no 225 until 1975, when Mr
Millbank senior conveyed them to his son, and after giving up farming he and
his wife lived in the house until he died in 1983, and thereafter his widow
occupied the house until she died in January 1987. Since then it has been
empty. We are told that Mr Millbank junior, who continues to farm the 102
acres, lives in a house called ‘Glades’, some distance away. He is only one of
four beneficiaries of his father’s will.
The executors tried to sell the house.
They found they could not get a purchaser with the occupancy condition attached
to it and that comes as no surprise. As the inspector pointed out, we are not
dealing with an agricultural worker’s cottage or small house in the ordinary
sense. We are dealing with a
inspector pointed out that the only purchasers would be retired farmers or
retired farm managers, other agricultural workers not being able to afford a
house of these dimensions. They tried for some eight months to find a purchaser
and failed, and then applied for the discharge of the condition. The inspector
held an informal hearing in January 1988 and gave his decision on March 10
1988.
It is necessary to look at the reasons
which the inspector gave. Having recited the history, he pointed out in para 5
that ‘the house . . . is now divorced from the land it once served’. As I have
said, he appreciated that it had a very limited catchment area in the locality
for would-be purchasers/occupiers. Then in para 8 he pointed out that planning
permission was given for development ‘because it was recognised as being
essential for the operation of the attached farmland’ and he correctly directed
himself about the vigilance which is needed in considering permissions for
development in the green belt.
He then directed himself on Circular 1/85
and Circular 16/87. It is useful to look at both. As far as Circular 1/85 is
concerned, we find in para 80 the policy statement set out:
It may happen that the circumstances of a
case justify the restriction of occupation of residential accommodation to an
agricultural or forestry worker. This may arise in a case where the land is in
an area where policies of restraint on development apply (eg Green Belt) but
special circumstances (the nature of land-use by the agriculture and forestry
industries, and the fact that it is often necessary for a farmer or landowner
to provide accommodation for his or her workers near their place of work) make
it appropriate to grant planning permission.
81. Where the erection of a house for an
agricultural worker is proposed for a site where a house would not normally be
permitted, and permission is granted because the house is intended to serve the
needs of agriculture, a condition may be imposed requiring that the house be
occupied only by a person engaged in agriculture or forestry (Model 32). The
condition should never tie the house to occupation by a worker on a particular
farm or smallholding. Where an agricultural occupancy condition has been
appropriately imposed it will not be appropriate to remove it on a subsequent
application unless it is shown that the long-term need for dwellings for
agricultural workers, both on the particular farm and in the locality, no
longer warrant reserving the house for that purpose.
and the same circular gave a model
condition; as it was one which the inspector substituted for the one originally
implied I will read it. It is to be found at para 32 of Appendix A to the
circular:
The occupation of the dwelling shall be
limited to a person solely or mainly employed, or last employed, in the
locality in agriculture as defined in section 290 of the Town and Country
Planning Act 1971, or in forestry, or a dependant of such a person residing
with him or her, or a widow or widower of such a person.
Circular 16/87 contains the following at
para 9:
Changes in the scale and character of
agriculture in response to market changes may well affect the requirement for
dwellings for occupation by agricultural or forestry workers. Such dwellings
should not be kept vacant simply by virtue of planning conditions restricting
occupancy which have outlived their usefulness. Applications for the removal of
such conditions should be considered on the basis of realistic assessments of
the continuing need for them. There is no virtue in keeping dwellings
unoccupied if they are no longer needed for their original purpose.
I will assume that as the inspector
refers to these circulars, with which he must be familiar, he was doing his
best to apply those criteria to the task in hand. But it must be remembered
that he was faced with a particular kind of house — not the usual agricultural
dwelling — and he recognised that that required special treatment. He went on
to give his real reasons for rejecting the application to discharge the conditions
at para 10:
I have considered the evidence which I
was given both by the Council and yourself relating to the demand for
agricultural dwellings in the locality. During the course of the hearing I was
also informed by the present owner of the 102-acre holding that he is
contemplating moving from his present house at Glade Lodge and re-establishing
himself in a new farmhouse which he would like to develop by modernising nos 1
and 2 Tithebarn Cottages. His reasons for considering this line of action are
security (since the farmbuildings are located close to the cottages) and cost
(the substantial investment which he has made in land has, he said, left him
unable to afford no 225 Wakering Road). Despite the fact that the appeal
property is now severed from any agricultural land, I am not convinced that
the former farmhouse could not be reintegrated into the reorganised farming
operations which are being considered. I acknowledge that the farmbuildings
would be remote from the house but I cannot ignore the fact that the previous
occupant of no 225 farmed from that property for a number of years and I do not
see why that should not continue to be the case. I also noted during my site
inspection the potential which exists for the expansion of the adjoining nursery
site to the north of the appeal site and where there could possibly be a need
for an associated dwelling at some future date. From the evidence which I was
given in relation to the question of demand, I am not persuaded that there is
no long term need for the use of the appeal premises in connection with
agriculture but restricted in accordance with a suitably amended occupancy
condition.
He duly amended the condition.
The learned judge was dealing with the
matter, again, in my judgment, correctly, first of all in the first four pages
of his judgment setting out the criteria to be applied to the problem, and then
he came to deal with para 10 which I have just read. He said at p 8 of his
judgment:
Mr Pleming, who has striven valiantly to
defend this decision letter on behalf of the Secretary of State, identifies in
that paragraph of the decision letter three reasons why the inspector was
saying the condition should be retained; the first being that he was not
satisfied that the house could not be reintegrated into the holding; the second
that it could possibly be needed for the adjoining nursery site, and the third
being that some other agricultural worker, or retired agricultural worker could
require it, by reference to the earlier paragraphs. In effect the inspector was
saying — says Mr Pleming — ‘your advertising campaign does not impress me upon
that point’.
Given that those are the three reasons,
is it possible to say that they amount to a realistic assessment of continuing
need? That is really the exercise on
which the inspector ought to be engaged. In my judgment, it is not possible to
say that. The inspector is not facing the reality of the situation when he
takes the view that he is not satisfied. The words he uses are: ‘I am not
convinced that the former farmhouse could not be reintegrated into the
reorganised farming operations which are being considered’. That is the way he
puts it. So far as I can tell, what he is referring to is the intention of the
farmer to move from Glade Lodge to 1 and 2 Tithebarn Cottages. That is the
farmer’s apparently reasonable intention. To say from that, that is a
reorganised farming operation within which this former farmhouse could be
reintegrated is both speculative and not in accord with what the farmer of the holding
in question reasonably intends to do.
As to the second point as to the
relevance of the adjoining nursery land
during his site inspection that there was potential for the expansion of the
adjoining nursery site on the basis of which he concluded there could possibly
be a need for an associated dwelling at some future date. That, in my judgment,
is purely speculative and is not in any way a realistic assessment of the current
state of affairs, nor indeed of the long-term needs. As to the third point,
that some other agricultural worker could require it on the basis of an
extended advertising campaign finding such a person, that too is wholly
speculative.
The learned judge concluded that the
decision was flawed and he quashed it. In my judgment, he was absolutely right
to do that for the reasons that he has given.
Mr Stinchcombe has submitted, in
promoting the grounds in the notice of appeal, that the learned judge applied
the wrong test, that he should have confined himself to considering, as the
inspector did, whether the applicant had satisfied him so as to justify a
removal of the condition, whereas the learned judge put it that the proper way
to look at it was whether the condition should be maintained in the
circumstances prevailing at the time of the appeal. It seems to me that the
correct test is properly laid out in the circular which I have already read and
the learned judge was doing no more than that. I think the inspector was
probably trying to do so too, but he has, in my judgment, introduced into the
decision matters which he ought not to have done. I cannot see any
justification for the idea that this house could be reintegrated into the
farming of the 102 acres which are left.
Further, I agree with the learned judge
that it was pure speculation as to whether somebody connected with a possible
expansion of the nursery business nearby might need a house such as this.
Third, I see no grounds for criticising the view of the learned judge that the
inspector had sought to take into account something which I do not think he
should have done; he has correctly reported that there had been eight months of
trial and advertising the house without success, and it seems to me that the
very narrow expansion of the occupancy condition, limited as it is to the
locality, makes it quite unreal to think that that would produce a suitable
purchaser.
I have come to the conclusion that the
learned judge was correct and I would dismiss this appeal.
STOCKER LJ: I agree. O’Connor LJ has read the facts
set out in para 10 of the decision letter in the context in which the inspector
seems to have used them — that is to say, in the context of Circular 16/87, and
in particular that any application for the removal of such a condition should
be considered on the basis of a realistic assessment of the continued need for
it. I would assume that what he has set out in para 10 is intended to be the
factors to which he was turning his mind as to a ‘realistic assessment’.
It has been submitted by Mr Stinchcombe
that para 10 should be construed in relation to land usage, not the actual
intention of the owner of the land — in other words that the inspector, in
dealing with those matters, was in fact dealing not with the actual position of
the applicant but with a theoretical consideration of what potential use that
land might have. The difficulty about that seems to me to be that, as O’Connor
LJ has pointed out, the inspector has taken into account in reaching his
conclusion matters which he was not entitled to take into account. In the first
of the reasons he gives in that paragraph he says he is not convinced that the
former farmhouse could not be reintegrated into the reorganised farming
operations which were being considered. What was being considered was a move by
the present owner of the 102 acres into some cottages which were adjacent to
the farmbuildings.
executor of the estate, and accordingly, in my view, to consider the
reintegration into the proposed reorganised farming operation is not a factor
which he was entitled to take into account and is not a realistic one
Moreover, the same comment applies to his
second reason with regard to the possibility of expansion of the adjoining
nursery site, and also it seems to me as a factual consideration it is wholly
unrealistic and there is nothing to indicate, in my view, that even regarded as
a potential land use there is really any substance in it. It is pure
speculation.
Moreover, his strictures upon the
adequacy of the advertisements must depend, as it seems to me, upon the size of
the catchment area to which the condition relates and the number of potential
purchasers who would be capable of qualifying in accordance with the condition.
Accordingly, for the reasons given by
O’Connor LJ, I also agree that the learned judge came to the correct conclusion
when he quashed the inspector’s decision.
BINGHAM LJ: It is very well known that for many years
now strenuous efforts have been made to keep the metropolitan and other green
belts green — that is, to keep to a minimum the new development taking place
within them. In particular, the policy has in general been to restrict the use
of land in green belts for new residential housing, for which purpose such land
is, because of its proximity to built-up areas, particularly attractive.
It has, however, been accepted that even
within green belts it is necessary to house the agricultural community, within
which expression I include farmers and ex-farmers and their wives and families.
Such housing may be permitted without destroying the character of an
agricultural community and indeed may be necessary to preserve the life of the
countryside.
Entirely different considerations arise
where it is sought to build houses, whether as retirement homes or second homes
or commuting bases, for those who have no connection with the land locally or
even at all and whose working lives are or have been spent in some urban
centre.
The general question underlying the
present appeal concerns the circumstances in which a house built for one
purpose may become available for the other. Mr Stinchcombe has addressed
argument as to the proper approach to a question of this kind and has submitted
that the concept of onus of proof as developed in civil litigation is
inappropriate. For my part, although argument has not been heard from the respondents,
I would accept that. One starts from the position that the condition was
lawfully imposed in the first instance. That being so, the condition will
remain in force unless or until the local authority or an inspector is of
opinion that the condition no longer serves a useful purpose. Onus could only
be relevant if, after full inquiry involving consideration of the facts and any
arguments presented, the mind of the local authority or the inspector was in a
state of complete equilibrium. I cannot, for my part, conceive that that would
ever be so, and I find nothing in the approach of the inspector as a matter of
principle in this case to flaw his decision.
I bear in mind that it is for the
inspector to consider the facts and representations and to make a judgment, and
those are functions that this court should not usurp.
It is, however, accepted on behalf of the
Secretary of State that it is the duty of the inspector to give intelligible
reasons for the decision to which he comes and that his decision is liable to
be quashed if he fails to do so.
For my part, I am by no means of opinion
that the inspector’s decision was
absence of full argument that the inspector was properly concerned primarily
with the use of land and not with the personal circumstances of any particular
party. But I do find myself in difficulty in knowing on what basis the
inspector reached his decision. If he had concluded that farming conditions had
so changed since 1965 that there was no longer an agricultural community in the
locality to house, he would no doubt have abrogated the condition which sought
to maintain it. If the inspector had concluded that there was an agricultural
community in the locality but that there was no reasonable prospect that any
member would ever occupy this house, again he would no doubt have quashed the
condition.
He has not abrogated the condition and
therefore evidently has not reached those conclusions. But it is not at all
clear to me what conclusion he has reached. If he is of opinion that there is
still an agricultural community in the locality, then I think it is necessary
for him to indicate at least in brief terms what he regards the community as
being and the extent to which agriculture is still carried on within it. We do
know from the findings that he made that substantial areas of land have gone
out of cultivation. If he is of opinion that local members of the agricultural
community might reasonably occupy this farmhouse, then it would be helpful to
have some indication of his grounds for so concluding. It is not entirely clear
whether the inspector envisages the son of the late farmer as occupying the
farmhouse for purposes of his farming activities or whether he regards the
intentions of the son as completely irrelevant.
If he regarded the asking price of the
house when it was advertised as excessive for a house subject to an
agricultural occupancy condition, as I think he did, then it would have been
helpful if the inspector had said so clearly and indicated his grounds for
holding that view.
I am not myself of opinion that his
decision as it stands is perverse, but I am of opinion that it is
insufficiently reasoned to be intelligible.
For that reason I would dismiss this appeal
and leave the matter for reconsideration by another inspector, who may come to
the same or a different conclusion. The applicants will no doubt consider
whether in the meantime they should further advertise the house for sale at a
price appropriate to a house subject to an agricultural occupancy condition,
whatever that price may be, whether more or less than the former asking price.
Appeal dismissed with costs.
