Rabbit breeding and associated vermiculture — Whether agricultural — Whether ancillary to agriculture — Whether financially viable — Whether failure to take into account later policy material — Whether inspector’s decision would have been the same — Decision of inspector upheld
Two enforcement notices were issued against Mrs P and Mr B for breaches of planning control with regard to two adjacent plots of land and buildings at Small Acres and Highfield Nursery, Collier Street, Yalding, Kent. The first enforcement notice related to a material change in the use of a stable/storage building to a residential use. The second related to the erection of poly tunnels on the land; the construction of fish tanks and the construction of a tarmac road.
In addition to the appeals against these notices, there was also an application for retrospective approval for a rabbit-production building on the Small Acres site, where intensive rabbit breeding was taking place, along with an experiment in vermiculture for producing compost for sale. The inspector found that the development conflicted with policies concerning development in the open countryside and refused the appeals.
In an appeal to the High Court, the applicants argued, inter alia, that rabbit breeding was clearly agricultural and that the vermiculture was ancillary to that. The second point was that in dealing with the question of planning permission, the inspector indicated that, according to RS6, any development which was to be permitted had to be necessary to agricultural activity already taking place on the land. The third point dealt with the question of viability and it was argued that the inspector had failed to take into account later policy documents.
Held The appeal was dismissed.
1. With regard to the applicant’s first point, the reference in the inspector’s letter to an industrial process was limited to the vermiculture and on the facts the inspector was clearly entitled to treat it as a separate activity from the rabbit breeding.
2. With regard to the second point, it was accepted that the inspector was wrong in his construction of RS6, which did not require an existing agricultural use. However, in reading the decision letter as a whole and having regard to section 54A of the Town and Country Planning Act 1990 — which created a presumption in favour of the development plan unless material considerations indicated otherwise — the decision of the inspector would not have been different if, contrary to the inspector’s view, there had been no breach of planning policy RS6.
3. The inspector considered whether the development was “necessary to agriculture” and based himself on Circular 24/73. In this case PPG7 was clearly relevant and the fact that its predecessor, Circular 24/73, was expressly referred to by the inspector showed that he did not have it in mind and that it was left out of account. The question therefore arose that if it had been considered, would it have made any difference? The case of Hewlett v Secretary of State for Environment [1985] 1 EGLR 170, where it was held that there was no reason to assume that the Secretary of State failed to take account of his own policy circulars, did not govern the present case. Rather it was governed by Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P&CR 343, which considered the issue of “a real possibility that [the decision-maker] would reach a different conclusion if he did take a consideration into account”. On viability, while PPG7 contained a more elaborate and flexible approach to financial viability, it did not represent any significant relaxation of policy on Circular 24/73. Thus the overall picture of the enterprise, formed by the inspector, as new and untried and in part speculative, remained the same irrespective of the fact that PPG7 had not been referred to expressly.
John Harvey and Mark Phillips (instructed by the Barry Johnson Partnership, of Bexhill-on-Sea) appeared for the applicant; David Holgate and Timothy Mound (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
