England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		The Royal Courts of Justice The Strand London WC2A Thursday 19 July 2001

Thursday 19 July 2001

1. LORD JUSTICE DYSON: This is an application for permission to appeal a decision of Scott Baker J of 18 January 2001, whereby he dismissed an appeal by Mr Dyason under section 288(1)(b) of the Town and Country Planning Act 1990 against the decision of an inspector who had refused to reverse various decisions of the Chiltern District Council ("the council"). Mr Dyason also seeks permission to appeal the earlier decision of Scott Baker J of 25 October, whereby he had refused permission to Mr Dyason to amend his grounds of appeal to include various arguments based upon the Human Rights Act 1998.
2. The background to these proceedings is a long-running dispute between Mr Dyason and his family on the one side and the council on the other. The dispute concerns a two-storey barn at Pathfinder Farm, Ramscote Lane, Chesham. Since 1994, if not earlier, Mr Dyason had been using the barn for the rearing of ostriches. He was the subject of enforcement notices served by the council which required the removal of the barn. He responded to those notices by seeking planning permission for the barn on the footing that it was reduced in height to one storey. That application was refused. There were appeal proceedings. Eventually he was successful in the Court of Appeal on the basis that he had not received a fair hearing. The matter was remitted for rehearing before another inspector.
3. The application for permission to retain the barn in a single-storey form was heard by an inspector on 28 July 1998. Permission was granted subject to certain conditions. Those conditions were not satisfied and accordingly that permission lapsed. Mr Dyason then applied for planning permission for the barn to remain in its two-storey form on two separate grounds and also applied for permission to locate a temporary dwelling, a mobile home, on the land to enable his son and daughter-in-law to live on the site. All of these applications were refused and Mr Dyason appealed. The appeal was heard on 15 and 16 September 1999. All three appeals were dismissed.
4. The first appeal was dismissed on the basis that, although the local planning policy allowed developments on Green Belt land if it was "reasonably required for agricultural purposes" and the ostrich-rearing activities were agricultural, the inspector was not convinced that a barn of the size sought was reasonably required. In short, the existing barn was deemed to be of an excessive size for the purpose intended.
5. The second appeal was rejected on the basis that the need for barn storage for the ostriches in the event of muddy conditions being encountered, as they previously had been, was not made out. The inspector felt that the fields required better drainage and more pens to allow rotation of the livestock.
6. The third appeal concerned the application for permission of a temporary dwelling for a worker, the criteria for which are contained in annex 1 to PPG7. The inspector noted that having his son and daughter-in-law on the site would be desirable or even advisable for Mr Dyason for the increased care of the animals, but the inspector concluded that it was not essential.
7. Mr Dyason appealed against all these decisions under section 288(1)(b) on a number of grounds which can be summarised as follows:

(1) the functional needs of caring for emergencies on the farm could not be met by the farm worker living in a dwelling almost two miles from the farm;

(2) the lack of a written business plan was not clear evidence that the proposed enterprise had not been planned on a sound financial basis;

(3) Mr Dyason was unfairly prevented by the inspector from establishing the practical application and meaning of the word "essential" as it applied to the proper functioning of the enterprise as understood by his expert witness;

(4) the written evidence of Mr Dyason's landscape architect expert, Mrs Gibbs, was ignored by the inspector; and

(5) the existence of a comparable barn at Cox Farm, which had recently received planning approval in the same area, was ignored by the inspector.

8. Of these five points, the first three relate to the third of the three appeals that I mentioned, and the fourth and fifth related to the other two appeals. I will deal with the points relating to the first three points first.
9. The criteria for a temporary dwelling are set out in annex I14 of PPG7. They include: "(b) functional need; (c) clear evidence that the proposed enterprise has been placed on a sound financial basis". The functional need referred to in (b) is further described at I6 in the following terms:

"A functional test is necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times. Such a requirement might arise, for example, if workers are needed to be on hand day and night:

* in case animals or agricultural processes require essential care at short notice;

* to deal quickly with emergencies that could otherwise cause serious loss of crops or products, for example, by frost damage or the failure of automatic systems."

10. As I have already said, the inspector found that the functional test was not satisfied because the temporary dwelling was not essential within the meaning of the criteria to which I have referred. Mr Dyason's case is that the inspector failed to have proper regard to the need to have someone living on the site to cope with emergencies. The inspector observed that his son and daughter-in-law lived only one and a half miles away from the farm, that the journey time was about six minutes by car, and that they were able to supervise the holding frequently and conveniently at most times. He pointed out that Mr Dyason accepted that remote alarms could be fitted to warn, for example, of power failure but none had been fitted. The inspector concluded that while it was desirable, or even advisable, for a worker to be available at most times to provide care at short notice and deal with emergencies on the farm, it was not essential for the proper functioning of the enterprise and that accordingly the functional test had not been met.
11. As to that, the judge held that this was a conclusion to which the inspector was entitled to come on the evidence. Nothing that Mr Dyason has said to me, or indeed has set out, as he has at considerable length in his skeleton argument, has persuaded me that the judge was wrong in expressing that view.
12. The next complaint made by Mr Dyason is that the inspector was unfair in not allowing him sufficient latitude when examining his expert vetinerary witness, Mr Unwin. It seems that Mr Dyason wanted Mr Unwin to give evidence as to what "essential" meant in terms of best farming practice. The inspector was concerned that Mr Dyason was asking questions of a leading nature. The inspector concluded that, whereas Mr Dyason could himself have given evidence as to his understanding of what was meant by "essential" and chose not to do so, he could not elicit such evidence from Mr Unwin by means of leading questions. It seems to me that there was nothing unfair in the inspector taking that approach, which is the approach which is normal in legal proceedings. I should add that I have considerable doubts as to whether the question of what was meant by "essential" was really a matter for expert evidence in any event. But be that as it may, I do not see that this complaint discloses any error of law on the part of the inspector.
13. The final point on the third appeal concerns the fact that the inspector also found against Mr Dyason on the ground that the criterion in annex I14(c) to PPG7 had not been satisfied; that is to say, that there was evidence that the business had been planned on a sound financial basis. The inspector regarded it as of significance that no business plan for the current or following year was in existence and that the plan for the previous year had proved to be optimistic. No separate accounts were kept and it seems that the business had hardly generated any income. As the judge put it: "There appeared to be little evidence of financial rigour in running the business".
14. The inspector dealt with this at some considerable length. He said that he took into account both the present depression in livestock farming generally, the volatility in the demand for ostrich products and the potential to save costs in marketing the meat direct, as an indication that there might be the potential to increase the income in the future. Nevertheless, he concluded that the enterprise did not appear to be planned on a sound financial basis. The judge said as to that that the inspector had to form his own judgment on these matters, and had given intelligible reasons for his conclusions. The judge could detect no error of law.
15. Nor can I. It seems to me that these are all matters of fact and Mr Dyason has been unable to identify any misdirection in law or perverse decision. So it seems to me that there is no substance in the complaints made in relation to the third appeal.
16. I turn to the points which bear on the first and second appeals. First there is the complaint about the inspector's failure to take account of the evidence of Mrs Gibbs. The position is that the council called as their expert a Mr Martin, who said that the building in his opinion was harmful both to the openness of the Green Belt and the appearance of the countryside. Mrs Gibbs had prepared a written statement, which was before the inspector, but Mr Dyason did not call her as a witness. The thrust of her evidence was that the building did not damage the quality and visual character of the area and that it integrated well into its setting. Mr Dyason contended before the inspector that Mrs Gibbs was more of an expert than Mr Martin. He contends that the inspector took no account of what she said.
17. It is perfectly true that in his decision letter the inspector made no express reference to the evidence of Mrs Gibbs. It does, however, seem that part, at any rate, of paragraph 28 of the decision letter reflects some of the statement of Mrs Gibbs. I am wholly unpersuaded that the mere fact that the inspector made no explicit reference to the statement of Mrs Gibbs indicates that he failed to take it into account in arriving at his decision. The fact is that the essential question, namely, was the character and appearance of the countryside harmed by the building, was a matter for the judgment of the inspector. It was a matter on which he was very well placed to form a judgment, and one on which expert evidence was unlikely to be able to assist very much in any event. I find no substance in this complaint.
18. The final complaint concerns the way in which the inspector dealt with the comparable of Cox Barn. Mr Dyason submits that the inspector's decision in the instant case was inconsistent with the grant of permission for Cox Barn in 1995. The inspector dealt with this at paragraph 35 of his decision letter. He said that he was not satisfied that the two barns were comparable in size. The Cox barn was less than half the length of Mr Dyason's barn and although the ridge was marginally higher the eaves were lower. Mr Dyason submits that this reasoning could not form a rational basis for the inspector's decision if it was to be consistent with the grant of permission in the case of the Cox barn. Mr Dyason says that the real complaint in the instant case did not concern the length of his structure but its height. That may be so, but it is plain that the inspector also had regard to the height of the Cox barn. Once again these are all matters essentially of fact and of judgment, and no error of law has been disclosed.
19. I am therefore of the opinion that there is no prospect of a successful appeal against the decision of the judge in relation to any of the matters that I have dealt with so far.
20. As regards the decision of Scott Baker J on 25 October to refuse to permit Mr Dyason to amend his grounds of appeal to add human rights points, the position is this. The grounds that Mr Dyason wished to adduce were that:

(1) the subordinate legislation under which the Secretary of State for the Environment drafted PPG7 was incompatible with the Convention on Human Rights;

(2) the Chief Planning Officer of the council had acted without respect for Mr Dyason's rights to family life under article 8 when he ordered the demolition of the barn when an appeal over its planning permission was pending;

(3) the actions of the council sought to deprive Mr Dyason of his land and possessions contrary to the First Protocol of the Convention.

21. The judge noted that the matters complained of were not the same as those which were the subject of the substantive appeal. They concerned, certainly, the complaint about the actions of the Chief Planning Officer and concerned earlier events. But, more fundamentally, the challenge to PPG7 is misconceived since there is no subordinate legislation involved in PPG7, which is merely practice guidance. Furthermore, the suggestion that there is any conflict between PPG7 and the European Convention to my mind is fanciful. The final point is that in any event all the acts complained of by Mr Dyason took place before the Human Rights Act came into force. In my judgment, the exercise of discretion by the judge to refuse permission to amend the grounds of appeal on 25 October cannot be challenged.
22. For all these reasons, I refuse this application.
ORDER: Application refused