Town and country planning – Agricultural dwelling – Occupancy condition – Appellants’ dwelling subject to planning condition restricting occupancy to agricultural workers and their dependants – Second appellant running farm at a loss – Whether her husband and children “dependants” where second appellant not providing for them financially – Whether appellants entitled to lawful use certificate for use of dwelling without complying with occupancy condition – Appeal dismissed
The appellants lived with their two children in a dwelling on a farm which they owned in Worcestershire. The planning permission for the dwelling was subject to a condition limiting occupation to persons employed in agriculture and their dependants. The farm was run entirely by the second appellant, who kept a breeding herd of pedigree cattle. The first appellant, her husband, was a successful businessman and was not involved in the running of the farm. For each of the years 2002 to 2007, the accounts for the farm showed a loss.
In 2012, the appellants applied to the second respondent local planning authority for a certificate of lawfulness of use or development in respect of the continued use of the dwelling without compliance with the occupancy condition in the planning permission. They argued that, although the second appellant was an agricultural worker, her husband and children could not be regarded as her “dependants” in circumstances where the second appellant had made no profits from the farm for a period of 10 years and therefore did not contribute financially to their support; consequently, the occupancy condition had not been complied with during that period and was now immune from enforcement under section 171B(2) of the Town and Country Planning Act 1990 Act and thus lawful under section 191(2).
The second respondents did not give notice of their decision in relation to the certificate within the prescribed time limit and the appellants appealed to the first respondent’s planning inspector. Dismissing the appeal, the inspector decided that the word “dependant” did not just mean financially dependent but could be construed in terms of non-monetary benefits, such that the occupancy condition had been met throughout the relevant period and was still capable of enforcement. That decision was subsequently upheld by a judge, who dismissed a challenge brought by the appellants under section 288 of the 1990 Act: see [2014] EWHC 2480 (Admin).
The appellants appealed. They contended that the approach to planning permission for agricultural dwellings was to link the grant of permission, subject to an associated agricultural occupancy condition, with a requirement that the related agricultural enterprise be economically viable, and that the financial requirement affected who could be regarded as a “dependant”.
Held: The appeal was dismissed.
As a matter of ordinary language, the word “dependants” was capable of referring to relationships involving a non-financial dependency as well as those involving a financial dependency. Within a family home, spouses could sensibly be described as dependent on each other, and children as dependent on both parents, irrespective of the respective contribution of each spouse/parent to the family finances. Emotional support and care could be just as important factors as financial considerations.
The occupancy condition attached to the appellants’ dwelling did not, on its face, contain any requirement as to financial dependency on the agricultural worker, a requirement which could easily have been written into it had it been intended, but was equally apt to cover a non-financial dependency such as existed within a family relationship. The “dependants” referred to in the condition was intended intended to include a husband or wife without financial dependency.
While a local planning authority should consider any application for a new dwelling in the countryside on the basis of need for accommodation for an agricultural worker, for which purpose they would need to be satisfied as to the economic viability of the agricultural enterprise in question, that fact did not support the interpretation of the occupancy condition which the appellants sought to place on it. It could be assumed that the local planning authority had satisfied themselves of the need for a dwelling before granting the planning permission. The agricultural occupancy condition did not tie occupation to a particular agricultural enterprise or impose a requirement as to the continuing profitability of the business in which the agricultural worker was employed.
The underlying planning policy supported the interpretation of “dependants” in the condition as encompassing a spouse and children living as a family with the agricultural worker, irrespective of the degree of financial contribution that the agricultural worker made to family finances. The purpose of granting planning permission subject to an agricultural occupancy condition for dwellings in the countryside was to provide accommodation that was needed for an agricultural worker. It was reasonably to be expected that an agricultural worker with a family would want to live in such accommodation with his or her family, and the obvious purpose of including dependants within the condition was to permit them to do just that. There was no obvious reason why the condition should be read as applying only where the agricultural worker provided financial support to the family members living with him or her. It would be surprising if the intention were to permit an agricultural worker to have family members living with him or her only so long as the agricultural business was profitable, or to require family finances to be organised in such a way as to channel profits from the agricultural business into meeting the family’s ordinary living expenses rather than, for example, allowing them to be reinvested in the agricultural business while relying on the spouse’s income to meet the living expenses: Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 considered.
Martin Kingston QC (instructed by Harrison Clark Rickerbys, of Worcester) appeared for the appellants; Jonathan Moffett (instructed by the Government Legal Department) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
