Erection of a building without permission — Inspector applying General Development Order 1988 — Order coming into effect nine months after building commenced — Whether error in law — Whether development permitted under General Development Order 1977 or General Development Order 1988 — Which order applicable — Whether separate parcels of land could be taken into account in determining size of agricultural unit — Whether notice valid and enforceable — Whether land in “agricultural use” — Whether use constituted “trade or business” — Application remitted for rehearing
An enforcement notice was issued by the second respondents, Salisbury District Council, on May 21 1991 concerning “a building or buildings” on land in Weston Lane, a short distance south of the village of Witherslow, Wiltshire. The land was bounded on its east and west sides by a belt of mature woodland. While new wooden fencing had been erected on part of the southern boundary, the remainder and greater portion of the rear boundary was open. The site contained two buildings. The first was erected in March 1988 and an appeal against an enforcement notice in relation to this building had been dismissed in September 1989.
In March 1991 the second building was commenced. It was a large two-storey barn. Due to the preliminary nature of the works and their proximity to the first building, the council was not clear whether it was to be an extension of the first building or a new one. That accounted for the reference in the notice to “building or buildings”. The notice was intended to refer both to the first building and to the second one which, by the time of the public inquiry in November 1991, had been completed and was in use for the growing and storage of mushrooms. The Secretary of State through his inspector dismissed an appeal by the applicant against the notice following an inquiry in January 1992.
The applicant appealed to the High Court against that decision. There were two main grounds of appeal: (1) that the inspector erred in law in holding that the development to which the enforcement notice related was not permitted development under the 1988 GDO, whereas the inspector should have applied the 1977 GDO. That point was conceded by the Secretary of State but not by the Salisbury District Council; (2) that the inspector erred in law in holding that the enforcement notice was not vague or imprecise and was therefore valid and enforceable. Further, under both the orders, development was permitted without the need to obtain planning permission which involved “the carrying out on agricultural land having an area of more than one acre (0.4 hectares) and comprised in an agricultural unit of building … requisite … for the purposes of agriculture”.
However the 1988 GDO — unlike the 1977 GDO — specified that “the area of 0.4 hectares shall be calculated without taking into account any separate parcels of land …”. In the instant case, the size of the area of the agricultural land was in dispute, as was the question whether a parcel of land owned by the applicant’s sister should be included in the calculation of the area.
Held The appeal was allowed and the case remitted to the Secretary of State for rehearing.
1. The correct date to determine which GDO applied was the time immediately before commencement of the erection of the relevant agricultural building: see Jones v Stockport Metropolitan Borough Council (1983) 50 P&CR 299.
2. On the evidence before the inspector, the first building was commenced in March 1988 and the second building in March 1991. As the 1988 GDO did not come into force until December 5 1988, the 1977 GDO applied to the first building and the 1988 GDO applied to the second building. The inspector had applied the 1988 GDO to the first building and in doing so she had erred in law.
3. One of the differences between the 1977 and 1988 GDOs was that the 1988 GDO introduced the requirement that separate parcels of land should not be taken into account in calculating the area of 0.4 ha. As the inspector had wrongly, on the evidence before her, applied the 1988 GDO, it was possible that she could have reached a different conclusion if she had applied the 1977 GDO to the first building. In those circumstances, the question whether the 1977 or 1988 GDO applied could make a material difference in the circumstances of the case.
4. In determining whether the land in March 1988 was agricultural land for the purposes of the GDO the inspector was entitled to take into consideration the scale of agricultural activity on the land. Having concluded that there was some agricultural activity on the land at the relevant date, the scale of activity would be relevant to the second part of the definition of “agricultural land” under section 109(1) of the Agriculture Act 1947, namely whether the agricultural use was “for the purposes of a trade or business”.
5. It was an important integral part of the definition of agricultural land that the agricultural use of the land should be for the purposes of a “trade of business”. However, the inspector did not seem to have applied that relevant test to her conclusion relating to the scale of agricultural activity. Her failure to mention or apply that important test meant that she had failed to take into account a material consideration and the matter should be remitted to the Secretary of State for that aspect to be taken into consideration.
6. In basing her conclusion on the area of land enclosed within the fencing the inspector was considering the factual situation at and after the inquiry. She failed to consider the factual situation as at March 1988, which was the relevant date at which to consider that aspect of the matter on the evidence before her in relation to the first building. Therefore, in reaching her conclusion relating to the size of the area of agricultural land the inspector erred in failing to consider the factual situation at the relevant date for the first building which was March 1988. It was possible that if she had considered the situation at the correct date she might have reached a different conclusion. The matter would be remitted for reconsideration.
7. The council had argued that the applicant was estopped from asserting that there was agricultural activity on the land in March 1988 by virtue of the finding of fact by the inspector in the first enforcement notice appeal relating to the first building, in that there was no evidence that the applicant was carrying out any agricultural activity on the land. However, the two notices were dealing with different issues and issue estoppel did not arise in this case.
8. Finally, the notice was not so vague and imprecise as to render it a nullity. The notice covered all development on the site and told the applicant fairly what he had done wrong and what he had to do to remedy it. On the other hand by the time of the inquiry it was clear that two buildings had been erected and the inspector should have varied the terms of the notice which referred to “a building” to make it clear that it referred to both buildings. Such a variation would cause no hardship to the applicant and the matter would be remitted to the Secretary of State for the variation to be made.
Susan Hamilton (instructed by Batten & Co, of Yeovil) appeared for the applicant; Ian Albutt (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Richard Egleton (instructed by the solicitor to Salisbury District Council) appeared for the second respondents.
