England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16th October 2002

1. MR JUSTICE OUSELEY: This is an appeal under section 288 of the Town and Country Planning Act 1990 against a decision of the Secretary of State for Local Government, Transport and the Regions, taken on his behalf by an inspector following a hearing into the claimant's appeal against the refusal of planning permission for the change of use of certain land for the key agricultural worker's mobile home. The inspector gave his decision in a letter dated 18th April 2002.
2. The application described the proposed development as "use of land for the key worker's agricultural mobile home". In reality, the mobile home in question had been on the land at Cornshire Fields Farm, Cooksey Green, Worcestershire, for a few years before that. An enforcement notice had been issued in respect of it, but that enforcement notice has not taken effect because it has been the subject matter of an appeal.
3. Permission was refused by Wychavon District Council on the grounds that there was insufficient justification for the retention of the mobile home on either agricultural, animal husbandry or animal welfare grounds, and that its retention would be materially harmful to the openness and character of the green belt within which it was situated.
4. The key worker to whom the application referred is the claimant, Mr Doe. The use of the land for the retention of the mobile home was agreed to be contrary to green belt policy in the Warwickshire County Structure Plan and the Wychavon District Local Plan. It was, therefore, at issue in the appeal whether very special circumstances existed to justify the retention of that mobile home.
5. The very special circumstances that were relied on by the claimant were that its retention was necessary for the purposes of the rural enterprise which he, with his business partner, was carrying on on the site, which was essentially the rearing of game birds from egg, through incubation to disposal to game keepers. This was coupled to a rather lesser degree with other agricultural activities on site.
6. Although the rearing of game birds is not an agricultural activity for the purposes of the Town and Country Planning Act 1990, it was agreed by everybody at the hearing that the appropriate way in which to approach whether the circumstances of that enterprise constituted very special circumstances was to see whether the enterprise, together with any agricultural activities, fitted or passed the tests set out in PPG7, which deals with development in the countryside. Annex I to PPG7 deals, in particular, with the approach to be adopted in relation to agricultural dwellings.
7. The inspector approached the application of PPG7 to the appeal proposals on the basis that he was dealing with a temporary agricultural dwelling. I draw that conclusion from the first sentence of paragraph 5 of his decision letter, in which he says:

"The criteria which are relevant to the consideration of a temporary agricultural dwelling are set out in paragraph I14 of PPG7."

Although I14 does indeed deal with temporary agricultural dwellings, there are also cross references back in the annex to tests also applicable to permanent dwellings.

8. So far as this enterprise was concerned, the inspector accepted that the claimant had satisfied the first of the criteria set out in paragraph 114. That is to say, he accepted that there was clear evidence of a firm intention and ability to develop the enterprise concerned. I draw that from the second sentence of paragraph 5 of the decision letter, which reads:

"The first of these [criteria] is that there should be clear evidence of a firm intention and ability to develop the enterprise concerned and there seems little doubt that this is the case."

The inspector gave brief reasons as to why he had come to that conclusion.

9. The particular criteria in I14 which the inspector then turned to deal with, and in respect of which he reached conclusions adverse to the claimant, were criteria B and C. It is my judgment as well that his conclusion in relation to the stationing of a mobile home on the site for three months or so of the year, he also had D in mind, but he did not take the view that the functional need could be fulfilled by another dwelling on the agricultural unit or other existing accommodation in the area suitable and available for occupation by the workers concerned. There were no normal planning requirements which were unsatisfied. Accordingly, the inspector's decision focused on criteria B and C.
10. In PPG7 criterion B, functional need, is elaborated in paragraph I6. The functional test is described thus:

"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."

There are other matters relevant to functional tests which are referred to. The local authorities may need to be concerned about a possible abuse of the agricultural cottage or dwelling house exemption from normal planning policy. That is not something which arose here. The protection of livestock from theft or injury may be of relevance to the need, although not itself sufficient. It will be necessary to look at other matters as well which do not arise in this case.

11. So far as criterion C is concerned in paragraph I14, it reads:

"Clear evidence that the proposed enterprise has been planned on a sound financial basis."

12. It is relevant in that context to draw attention to paragraph I4, because that sets the framework for the consideration of the criteria and, in particular, makes clear what the purpose of the criteria are. It is of particular relevance in relation to submissions which Mr Hickmet made in relation to the way in which the inspector approached the financial considerations. I4 reads:

"In particular, it will be important to establish that stated intentions to engage in farming and forestry are genuine, are reasonably likely to materialise, and are capable of being sustained for a reasonable period of time. It will also be important to establish that the needs of the intended enterprise require one or more of the people engaged in it to live nearby."

13. I turn now to the way in which the inspector dealt with those two criteria. The inspector, in paragraph 7 of the decision letter, set out the main and minor activities on the site:

"The appellant's main activity on the land is game bird rearing but, at present, he also has 12 breeding calves, 9 beef stock and 3 heifers in calf as well as 300 hens and ducks. It was emphasised, however, that the justification for the mobile home was largely based on the game rearing."

14. He then described in brief terms the material before him in relation to functional needs. This is set out in paragraphs 8 to 14. In view of the submissions which have been made, it is important to note what has been said, and I feel it necessary therefore to set out the whole of paragraphs 8 to 14:

"8. The game rearing operation is based on breeding stock and buying in eggs and poults. The appellant's appraisal, prepared by Game Conservancy Ltd, outlined the main periods of activity. These related to the transfer of breeding stock to laying pens in March & April, egg collection and incubation in May and continuing in June to September with the management of juvenile birds and stock delivery and the care of overwintering breeding stock from October to February. This report acknowledged that the rearing activity was seasonal.

9. The appellant pointed out that the incubator needs to be supervised at all times to eliminate the chances of losses through power cuts and other system failure. Hatched chicks are also vulnerable to breakdown of heaters in the rearing huts.

10. The appraisal, carried out by Warwickshire County Council on behalf of the Council, emphasised that the enterprise was seasonal with peak times at laying, hatchery management and care of hatched birds through to delivery to shoots.

11. The appellant indicated that the majority of birds would be dispatched by August so it seems to me that the 5-month period from April to August is the time when the birds need to be attended and supervised. There may well be a period from April to June, when eggs are hatching and chicks are frail, that it is essential for a person to be on hand at most times but this amounts to only 25% of the year. Even during this period, power cuts and other system failures could be safeguarded by warning and backup equipment, but I accept that Cornshire Fields Farm is not near any settlement where someone might live and be capable of monitoring and responding to an emergency.

12. From my understanding of the appraisals prepared by the Game Conservation Ltd and the County Council, and having heard the appellant's evidence at the hearing, the majority of the work associated with the game rearing business can be regarded as normal tasks which would be accomplished during the working day, as with any stock rearing enterprise. The County Council advised that the problem of emergencies could be handled by a temporary caravan located on the site during the peak rearing season and, to my mind, this would be sufficient safeguard for the welfare of the birds. I accept that the test as set out in PPG7 is not qualified by reference to the need for a worker to be readily available on a seasonal basis, but I understand the phrase 'at most times' to include at most times throughout the year.

13. PPG7 points out that the protection of livestock from theft or injury may contribute on animal welfare grounds to the need for a dwelling, although it will not by itself be sufficient to justify one. The appellant mentioned that there had been some theft and, whilst I fully accept that the birds should be protected, it seems paradoxical to me that a business which deals with the breeding and rearing of game birds should be started on land where there was no certainty that there would be any living accommodation to provide full-time supervision and where it is now claimed that there are risks to the safety of the birds.

14. I do not consider that the game rearing on this site, on current evidence, satisfies the test that is essential for the proper functioning of the enterprise for a worker to be readily available at most times."

15. I propose to deal first of all with the submissions in relation to the treatment by the inspector of the functional test. There are essentially five points that have been made by Mr Hickmet in his very helpful submissions on behalf of the claimant.
16. The first submission relates to the evidence before the inspector relating to the way in which the enterprise operated and the degree of need for 24-hour on site presence whilst eggs were being incubated, hatching and the chicks thereafter were being reared.
17. Mr Hickmet puts his case in a number of ways. He contends that the evidence was misunderstood or ignored, or, alternatively, that reasons which the inspector has given in relation to his conclusions are legally inadequate. In particular, these submissions focus on the differentiation which the inspector drew between the needs of chicks for 24-hour attendance whilst they were being reared and those chicks which were incubating, hatching and were frail in the early weeks of their life.
18. The evidence before the inspector came in a number of forms. First, there was the written material from the claimant's own consultants, Game Conservancy Limited. The inspector had two reports from them. In the first report the consultant made the point generally that production, rearing and management of game birds was an activity which required:

"very regular attendance, particularly at key periods throughout the year. The principal requirement for regular attendance is between the months of February, March and September, October. The principal activities within this period are:

a) Egg production (April to June)

b) Incubation (May to July) and Gamebird Rearing (June to September)."

Under the head, "Rearing" the consultant said:

"It is perhaps during the early stages of rearing that your gamebird chicks are most vulnerable to losses. This is where skilled attention is essential to ensure high standards of appropriate welfare and to minimise possible losses. Young chicks require constant attention for the provision or feed, water ..."

19. A second report by the same consultancy was produced on 11th July 2001 dealing with the period June to September after incubation. It said:

"Particularly during this period owing to the sensitivity of gamebird chicks to weather, predation and a range of other factors, constant on site attention is essential to viability. Stock will require attention throughout the entire 24 hour period."

20. Warwickshire County Council had produced for Wychavon District Council a report through its Rural Estates Services Manager. This was an agricultural appraisal of the proposed enterprise. In it the author made reference to the preparation on site and to the intention of Mr Doe to start a calf rearing enterprise by purchasing calves direct from the market. He dealt with the guidelines set out in paragraph I14. He looked to see whether it was essential for a worker to live on or very close to the site. He dealt with the nature of the pheasant chick rearing process ready for the shooting season in October. He said:

"I would accept that if the applicant eventually commences his own rearing operation, i.e. nucleus flock and a hatchery, then the burden of care and attention to detail will change. Notwithstanding this, the use will still be seasonal with peak times occuring at laying, hatchery management and initial care of hatched birds through to the point where the birds reach a sustainable level, before onward delivery to shoots for their management and onward feeding.

In reality the applicant has as yet not reached the level of production envisaged and in my opinion, without a further enterprise i.e. calf rearing there will not be an essential need for a physical presence on site."

21. Later on he said that when the flock had reached the intended level, it would require regular attention on management and welfare grounds, particularly after hatching. He said that major problems could occur with the failure of the incubator or individual heaters within rearing pens.
22. He concluded, however, that the proposed retention of the mobile home was at odds with the on site realities. The enterprise had not been able to start in the way it had been hoped because of Foot and Mouth, and the applicant had had to resort to buying in his own birds and had not started his calf rearing enterprise. Those matters, I add, had of course changed by the time of the hearing. He said:

"However, your authority may wish to give weight to his undoubted problem since buying the unit and consider a short-term permission with a review within, say 12 months or earlier i.e. at breeding time."

23. The inspector did not have the authors of the two sets of reports before him, but he did have the benefit at the hearing of leading a discussion with Mr Doe and others as to what the significance of the various points made in the reports was. The decision letter itself records part of what was said, but is essentially to be seen as the inspector's distillation of the important points as he saw them which emerged from the totality of those three reports and what he was told by those who gave evidence to him and answered the questions which he raised about what the report signified.
24. It is particularly difficult to be sure, in the light of the evidence before me and bearing in mind the nature of an informal hearing anyway, as to precisely the points which were made, were not made, were accepted and were not accepted. The reports and oral evidence did not all tell precisely in the same way, there were differences as to timing and urgency of need.
25. Following the dismissal of his appeal, and as part of his claim here, Mr Doe provided a witness statement in which he took issue with a number of points made by the inspector. It is not clear from that witness statement whether what he is saying is new material or whether he is saying what he told the inspector. He says in paragraph 5 that the regime set out in the report of Game Conservancy was explained carefully to the inspector at the hearing. The only reference which he makes to all the discussions was that both he and his business partner explained how their system required 24-hour attendance from April, "as we buy in our 1 day chicks early in the season." He said that he could not understand how the inspector concluded that 24-hour attendance was only required for 25 per cent of the year when the documentary evidence showed it was required for 33 per cent of the year and their oral explanations demonstrated that it was required for 50 per cent of the year. He also refers to the other agricultural activities that he had on site.
26. The inspector, responding to points made in the grounds of claim, said this in paragraph 3 of a witness statement:

"At the hearing the Claimant said that the incubator was switched on in April for an 11-12 week period. At paragraph 9 of my decision letter, I recorded that the Claimant pointed out at the hearing that the incubator, when switched on, needs to be supervised at all times. The Claimant gave these answers orally at the hearing during a part of the discussion, which I led, concerning the content of the Game Conservancy Ltd appraisal (11.7.01) as it related to the May and June-September periods. The use of the incubator was specifically referred to in the May period but the activities in June-September were introduced by the phrase 'As above plus...' This part of the discussion was to clarify and get more specific information about the activities and the relevant time periods referred to in the appraisal."

27. As I have already said, the inspector's decision letter can only fairly be regarded as his distillation of the important points which emerged from the evidence which he heard and his acceptance of such points or their rejection. It does not purport to be a recording of all the evidence which he heard orally or had in writing in front of him. It is, in my judgment, impossible to say that he ignored any part of the written or oral evidence. The fact that the conclusion to which he has come is at odds with part of the written statements from Game Conservancy does not demonstrate the point at all. It is perfectly clear that he engaged in a discussion of those points with the benefit of the evidence of Mr Doe and his business partner who knew how they operated the enterprise and said what they felt was necessary for it. It is perfectly clear from reading the reports and from what Mr Doe said, and what the inspector records as having been said, that there was no one consistent picture which emerged from all of those points. To say that the inspector had ignored or misunderstood such evidence as opposed to reaching conclusions upon it, is to misunderstand the nature of that part of the decision letter.
28. Mr Hickmet submits that, nonetheless, the inspector has failed to provide adequate reasoning as to why, in the light of that material, he distinguished in the way he did between the more intense needs which chicks would have when they were hatching and being incubated and in their early weeks, from the less intense needs which they would need thereafter whilst they were being reared.
29. It is true that the inspector gives no specific reason himself for that differentiation in the light of the evidence which he had heard, but it is perfectly clear from the totality of the evidence that he was in a position to take a view, and a reasonable view, that the period up to the cessation of incubation was a period which required more urgent and intense care than the later period when the birds were being reared.
30. It is not necessary, in order for an inspector to have given legally adequate reasons, for him to have given reasons for every aspect of the conclusions which he reaches on the way to his overall decision. What is necessary for him to do is to give his reasons for his conclusions on the principal contentious points and the principal features of his decision. It is my judgment that, seen in the context of a conclusion in relation to whether the functional criterion was satisfied, the reasons which have been given by the inspector for concluding that a person had to be on hand for only 25 per cent of the year are legally adequate, even if they are not as refined as they could be.
31. The other points that arose in relation to the way in which the inspector had approached that evidence relate to the period of July, which was said also to be a period of incubation, and to September, but it is clear that criticism of that reasoning is ill-founded. The inspector expressly deals in his decision with the period of incubation, concluding that it is three months, and he explains in his witness statement what the source for that was. It is also clear from the Game Conservancy reports that by the end of August most of the birds have gone, and it is therefore wholly legitimate for him to focus on the real needs of the enterprise as being from April to August and the intense needs as being from April to June. In any event, for reasons which I shall come to, a difference between three months of the year when 24-hour attendance on site would be required and 5 months of the year when 24-hour attendance on site was required does not give rise to a point which could reasonably be thought to be critical. The inspector was seeking to apply the phrase from paragraph I6 of Annex I "at most times". To whichever period of time that phrase is applied it connotes more than half. A difference between two months, three months, four months and five months would not bear upon the critical issue.
32. Accordingly, the first ground which is raised by Mr Hickmet fails.
33. The second point that is raised by Mr Hickmet in relation to the functional test concerns the last sentence of paragraph 12. He submits that the inspector's approach to the application of the phrase "at most times" involves a misinterpretation by the inspector of the annex. The inspector said that he understood the phrase "at most times" to include "at most times throughout the year". Mr Hickmet said that that was entirely wrong; the phrase was intended to apply to most times throughout the day. It is not necessary to go into the authorities that deal with the proper approach to the construction of a policy document, nor is it necessary to debate whether the inspector's approach is a reasonable one or not; the inspector's approach is clearly right and Mr Hickmet's approach is clearly wrong. The reason why it is clearly wrong is that one has to see the phrase in its context. Mr Hickmet is right in saying that the words "at most times" must include "at most times of day and night". That is perfectly clear because the functional test which involves a consideration of "at most times" applies both to permanent dwelling houses and to temporary agricultural dwellings. It is written in the context of workers needing to be on hand day and night. But what, in my judgment, Mr Hickmet's submission ignores is that what the purpose of this requirement is, is to examine whether there is a need for a dwelling house which might be there all year round, or whether there is a need for a temporary agricultural dwelling which might be there be for a relatively few number of years, or whether there is a means whereby the requirements of the agricultural enterprise can be met by a mobile home, for example, which is taken onto the site, kept there while it is actually needed for a peak requirement or a seasonal requirement and can then be removed. If a dwelling is to be permanently there, or temporarily there throughout the whole of the year or the whole of say three years, then it is quite clear that the functional test envisages that the need which arises 24 hours a day or at most times of the day is a need which will endure for the most part of the year during which the dwelling is there. One cannot have one without the other. One only needs to consider this: could it possibly be the case that if for a period of, say, a month's lambing it was necessary to have an agricultural worker living on site so that the requirement in relation to a period of 24 hours had been satisfied, but only for a short period of the year, the functional test would have been satisfied so as to give rise to a need for a permanent dwelling or a temporary dwelling which remained there throughout one or more years? That cannot be a sensible way in which to read the annex. Likewise, one cannot read the annex as ignoring the need for somebody to be on site 24 hours a day so as to focus on a need which lasts through the year for someone to be on site but only during daylight hours. It is quite clear that that too has to be examined because that is the very basis upon which an on site dwelling is contemplated. So the two have to be considered together. In my judgment, the inspector has considered those matters together and there is no error of interpretation by him of paragraph I6.
34. Mr Hickmet submitted that it could be seen that his interpretation was right because otherwise it would be the death knell for accommodation on smallholdings. I do not accept what I regard as a piece of exaggerated advocacy. There are many ways in which smallholdings might continue to obtain permanent dwellings, or dwellings present for a number of years whilst the smallholding got under way. But his submission unfortunately suffers from the disadvantage that it would lead to the absurd result of a permanent dwelling being provided when someone was only needed on site for a comparatively short period of time.
35. Mr Hickmet's third submission in relation to functional requirements was that the inspector had ignored the other activities which Mr Doe carried out on site, and in particular the other stock activities. The inspector referred to these in paragraph 7 of his decision letter and, as Mr Hickmet acknowledged, correctly emphasised that the justification for the mobile home was largely based on the game rearing rather than on the other activities.
36. Mr Hickmet correctly points out that the inspector, having referred to those other activities, does not then bring them into account when examining the functional necessity for having a worker permanently on site. There is, however, a reason for that. That is because there was no evidence before him in relation to the functional necessity for a worker in relation to those activities as something which would add to the functional necessity deriving from the game bird rearing activities.
37. Mr Hickmet referred me to a number of points which he said supported his contention, but I was unable to derive from them the support that he sought. In paragraph 17 of the appellant's statement of case, drafted by Mr Hickmet, it said that:

"The keeping of cattle, chickens and ducks are also other activities which require full-time attendance."

But that is what one would have expected the evidence before the inspector to have dwelt on. Mr Hickmet was not able to point to anything which supported that in the witness statement of Mr Doe, and indeed there is nothing in the witness statement of Mr Doe that suggests that he told the inspector that what he was doing had, in relation to the agricultural activities, generated any need for a full time, that is to say 24-hour a day, resident worker.

38. Mr Hickmet also referred me in this context to the County Council's agricultural appraisal in the paragraph, to which I have already referred, when it was said that the level of production of game birds did not require 24-hour attendance without a further enterprise, that is to say calf rearing. The problem with a general reference of that sort, and there were others in the same document which he referred me to, is that they say nothing about the degree of agricultural activity which would be of assistance to the claimant in generating an additional need for someone to live on site. This is a matter of fact and degree and, in the absence of any evidence being provided to the inspector showing that the degree to which that activity was carried on meant that there was an additional basis for having a resident worker on site to that generated by the game bird rearing activities, the inspector cannot be criticised for not having brought into account that additional factor in support of the functional analysis.
39. Fourthly, Mr Hickmet submitted that in paragraph 13 of the decision letter the inspector had made a critical comment when he had said that it was paradoxical that the business should have been started where there was no certainty of any living accommodation. He said that that was irrelevant.
40. There is some force in the criticism there because it is well-known in relation to applications for temporary dwellings, as this was, that the business may well have to be started without certainty as to accommodation, and for the inspector to make the comment about the paradox, which he does, ignores the fact that the claimant, and people in that position, are inevitably in something of a cleft stick or, if I might be permitted the analogy, they face the problem of which comes first, the house or mobile home or the agricultural enterprise.
41. If that comment had, in my judgment, played any significant part in the inspector's reasoning, as opposed to being, as I see it, something of a throw away comment, I would have been concerned at the inspector's approach. However, I do not consider that it did play any role, or any significant role, in his approach; rather it was a short, but not altogether wise, point to make in relation to one aspect of the protection of livestock which did not play a significant role in his reasoning, and I would not quash the decision on that account.
42. Finally under this head Mr Hickmet submitted that this was a smallholding and, by its nature, a smallholding required 24-hour attendance with a whole variety of activities and the inspector should have approached this enterprise on the basis that it was a smallholding. This was related to Mr Hickmet's concern that if this decision survived, it would be an end to smallholding. I do not consider that that submission adds anything to the more detailed submissions in relation to functional criteria which I have already considered.
43. Mr Hickmet's next group of submissions related to the third and financial criterion. The inspector dealt with this first by setting out the criterion itself, and he reached a conclusion based upon the criterion itself. That is what he said:

"16. The site was acquired in 2000. The appellant acknowledged that the 2001 season had been fraught with problems due to the foot and mouth epidemic but he claimed that 10,000 birds had been distributed to shoots. This year the aim was to produce 7-7500 birds from 200 laying birds and another 7500 from eggs bought in.

17. There was no documentary evidence to support these forecasts although a projected business plan was submitted which related to 2001. The number of birds sold had been lower than set out in the plan and the sales yielded about £20-22000. With costs of about £6-8000, the profit was about £14-16000. It was expected that the profit in 2002 would be about £20-22000 based on about 15000 birds sold.

18. I can see no reason to doubt that the figure of 15000 birds to be sold in 2002 will not be attained. Judging by the projected business plan, however, the appellant has assessed profit by taking the income from sales and subtracting outgoings which are limited to purchase of laying stock, feed, gas, bedding and vet bills. To my mind, these do not reflect the true costs of the undertaking as there were items not listed or referred to which could make a significant difference to the profit.

19. The main problem arises from the lack of any reference to labour costs. I accept that the appellant and his family may live for the business but if, for instance, the living costs of the family are taken into account, which is the return for the appellant's labour, the profit would be dramatically reduced. There is also the possibility that the business might be subject to rates as it is not an agricultural use. No reference was made to utility charges which could be very significant due to the need for hearing of the incubator and the rearing sheds. Nor has account been taken of transport costs or costs of maintaining the land and buildings. In addition, the appellant has a business partner who will no doubt take a substantial share of the profit in return for his labour and expertise. The appellant said that he had no interest costs on the purchase of the land but, if the profit forecast were to be revised to reflect the factors I have referred to, the ability to finance any investment to sustain the business would be severely curtailed.

20. I fully appreciate that the appellant has cattle and poultry which may be contributing to his business but no evidence was produced which might have enabled these activities to be assessed. The case for the mobile home was principally based on the game rearing activities and, on the information available, I do not consider that, even on the balance of probability, the business has been planned on a sound financial basis."

44. Having dealt with those matters, the inspector came to the conclusion that his findings confirmed his view that the retention of the mobile home was not justified and, without proper justification, would result in "a harmful intrusion of a residential use, to the detriment of the openness of the Green Belt...".
45. Mr Hickmet makes a number of points in relation to these parts of the decision letter. The general point which he makes relates to the approach of the inspector to the business plan in paragraph 19. What is said is that that paragraph reveals a misguided approach by the inspector to the application of the criterion. Mr Hickmet emphasises that the purpose of the financial criterion is not for the inspector to act as an accountant to the enterprise or to appraise the enterprise in the way in which a bank manager would; still less is it for the inspector to appraise the enterprise on the basis that it is to be carried on by a hypothetical reasonable person rather than an enterprise to be carried on by the person who seeks the dwelling, is actually proposing to carry on the enterprise and who the inspector has found generally intends to and has the ability to carry on the enterprise.
46. In order to support that approach, Mr Hickmet referred me to the decision of the Court of Appeal in Petter and Harris v Secretary of State for the Environment, Transport and the Regions [2000] 79 P&CR 214. In this case the Court of Appeal held that the decision maker applying the criteria in relation to financial viability had to do so in the planning context in which the test was formulated. That is to say, the decision maker had to apply the underlying policy of preventing non-agricultural residential occupation arising in a case where a proposed agricultural occupation fails. The Court of Appeal held that in determining a planning application the personal circumstances of an applicant cannot be of overriding importance in the context of proper and regulated land use planning, but that the financial viability test was only relevant in the determination of whether the grant of permission would, because of the uncertain future of the agricultural activity, threaten to produce in the future a non-confirming residential use that would pass with the land. The application of the test did not require a rigid application of criteria designed for commercial agriculture, but rather a practical adaptation of those criteria to secure the underlying purposes of the policy. Profitability was no guide to the genuineness of the intention and a poor guide to the probable continuation of a business. The true question is whether the unit was sustainable in the hands of the claimant, and in that sense viable and likely to continue so.
47. The particular passages, and I do not need to set them out, which support the submission by Mr Hickmet are to be found in the judgment of Buxton LJ at page 223-4 and of Sedley LJ at page 225-6.
48. I would add, of course, that in looking at the individual proposed key worker when applying the financial test, it will be necessary to look at the prospects of that person continuing in the business, because if a person is only going to continue in the business for a short while and is carrying it on in an idiosyncratic and individualistic way, it may well be that no agricultural activity would continue thereafter. That is plainly a relevant matter.
49. I do not, however, consider that the inspector in this case has fallen into the trap which Mr Hickmet contends. He has not approached the business plan on a theoretical basis as if he were dealing with an enterprise being run by a theoretical businessman or a commercial enterprise. He has approached it on the basis that this enterprise was going to be carried on by Mr Doe and his business partner in the way in which they had been carrying it on for a year or so and were genuinely intending to carry it on. It is precisely because he is considering their circumstances that he makes the points which he does in paragraph 19. He is dealing in that paragraph with the question marks which hang over their own business plan as applied to the enterprise which they proposed to carry on, in the way in which they proposed to carry it on. So I reject the submission by Mr Hickmet that the inspector has erred in his approach. As I have said, he has applied the criterion and come to a conclusion related to this particular claimant and this particular claimant's enterprise.
50. A number of criticisms were made by Mr Hickmet of the individual components of the inspector's reasoning in paragraph 19. It was submitted that his points in relation to labour costs failed to recognise the fact that it was Mr Doe and his family and his business partner who would be carrying on the business. I do not accept that. The inspector was fully entitled to point out that the enterprise envisaged that there would be a worker on site, and that worker's expenses on site, that is to say those of the appellant and his family, had to be covered; he had to produce something of a living. The inspector was fully entitled to say that if the living costs of the family are taken into account, as the return for the appellant's labour, the profit was dramatically reduced. That is a perfectly proper point to make. It is a particularly important point to bear in mind, because the inspector points out that it is not only the appellant and his family who are seeking to take the profit which has been described. It is the business partner who, he perfectly properly says, would require a substantial share in return for his labour and expertise.
51. The evidence before the inspector as to the business arrangements between Mr Doe and his partner showed that the arrangements were, as one might imagine, informal and were conducted on the basis of a sharing of the profits which seemed to be fair and reasonable at the time between the two business partners.
52. The inspector does not take an accountant's view or a lawyer's view of those arrangements, but taking those arrangements as what they are, that is to say indicative of a business partnership that is based on friendship and trust but also on the taking of an actual share of the profits, the inspector concludes that that is going to diminish the amount of money that is available for all costs, including the living costs of the claimant. It is an inevitably legitimate approach for the inspector to take in examining the continued prospects of the business.
53. The inspector makes no error in relation to business rates. It is a relevant possibility, and he puts it no higher than that, because this enterprise is not, or might well not, be seen as an agricultural enterprise.
54. He deals with utility charges. There is an obvious need to heat the incubator and rearing sheds but their costs were not all included.
55. Accepting, as Mr Hickmet said, that the evidence before the inspector was that game keepers collected the birds, and so there were no costs of transporting the birds to the game keepers incurred by the claimant, nonetheless there are inevitably transport costs which are incurred in any enterprise of that sort.
56. Likewise, again accepting that the evidence before the inspector was that the buildings would be maintained by Mr Doe, and accepting that it would have been apparent to the inspector that the buildings on site were new, nonetheless the inspector is entitled, it seems to me, in examining the soundness of the finances, to take account of the fact that there are going to be, though it may be difficult to quantify, nonetheless costs incurred in maintaining the land and buildings, even if it is confined to materials.
57. In my judgment, therefore, the points made by Mr Hickmet by way of criticism of the inspector's approach to the financial criterion are unjustified.
58. Mr Ward, for the Secretary of State, makes the point, and it is accepted by Mr Hickmet, that in order for an enterprise to come within the scope of PPG7 Annex I it is necessary for all the criteria to be satisfied, and it would be sufficient in order for the inspector to have dismissed the appeal for him to have failed Mr Doe on any one criterion. It is therefore necessary if Mr Hickmet is to succeed in this for him to succeed in relation to both criteria B and C, but in my judgment his submissions in relation to both are ill-founded.
59. Mr Hickmet next submits that the inspector has erred in his approach to the prospect of there being a seasonal caravan. I put it that way because if one looks at paragraph 12 of the decision letter, the inspector refers to the County Council advising that emergencies could be handled by a temporary caravan located on the site during the peak rearing season which would be a sufficient safeguard for the welfare of the birds. In other words, says Mr Hickmet, the inspector has approached his conclusions, certainly in relation to the functional test, on the basis that a temporary or rather seasonal caravan would suffice. It is indeed the position that the local authority, Wychavon District Council, referred to this in its pre-hearing statement of case in addition to what the County said. The complaint made by Mr Hickmet is that such a temporary caravan would be an unrealistic proposition for this claimant. It would be unrealistic because the claimant is married and has children and if there were to be a temporary caravan located on the site it could only work satisfactorily if either he left home for those three months to live in the caravan or everybody at home left home to join him in the caravan with all the disruption that would entail to schooling and family life.
60. Mr Hickmet referred in this context to Article 8 of the European Convention on Human Rights. He said the inspector had ignored the personal circumstances of the claimant, which meant that in reality neither of those two ways of making a seasonal caravan work could in fact apply to him. If it had been the case that the inspector had produced a suggestion of a temporary caravan in the decision letter for the first time, such that Mr Hickmet and his client had not been reasonably alerted to the fact that here was a point that merited dealing with, there might have been something to be said by way of criticism of the inspector on the grounds of procedural unfairness. However, the matter was before the inspector in documents available to the claimant at the hearing. It is therefore not the case that the claimant has subsequently been taken by surprise by a point with which he had no chance to deal. The claimant could have put forward the personal circumstances to which I have referred, and clearly the inspector was aware that there was a family involved, from references he makes in his decision letter. But in fact, as Mr Hickmet accepts, no personal circumstances were put forward for the inspector to consider in relation to that issue. I would accept that this point may well not have been anywhere near the forefront of the mind of the claimant at the hearing. However, I have to say that where an application is being made for a temporary mobile home in order to support an agricultural enterprise which is in its relative infancy, and the evidence clearly points to a requirement that is of a duration significantly less than the whole of a year, the seasonal installation of a mobile home is an obvious point for the claimant to consider, and if it is impracticable, to say why it is impracticable. I do not consider that the inspector can be criticised in relation to that point.
61. I accept that Article 8 was raised at the hearing and was raised only in the context of the disavowal by Mr Hickmet and his client of reliance on his personal circumstances as a gypsy. He was not asserting that personal circumstances were irrelevant in all circumstances. I entirely accept that, but that does not provide Mr Hickmet with the point which he seeks. The answer to what the County Council and District Council had contemplated, and which was plainly something which could reasonably have been in the mind of the claimant and his advisors, is that that is a matter that they could have dealt with if they had wished to do so by pointing to their personal circumstances. Had they done so, I do not know what effect that would have had.
62. In those circumstances it is not necessary for me to make reference to the detail of the cases of Matthews v Secretary of State for the Environment, Transport and the Regions [2002] JPL 716 or to R v Maidstone Borough Council ex parte Tait and Churchill [2001] JPL 704, a decision of Maurice Kay J, but, in any event, even if I were to adopt the approach of Sullivan J in Matthews, of saying that there was an obligation on the inspector to consider Article 8 even if the points were not raised specifically under the heading of Article 8, nonetheless the obligation can only arise in circumstances where the claimant has put forward the facts necessary to support such an approach. Here, for the reasons which I have given, there were no such circumstances put forward and I do not consider that a reference to the existence of a family and to the distance of the site from Droitwich or other towns makes the point one in respect of which it was incumbent on the inspector to reach a conclusion.
63. The last point that was raised briefly was that the inspector had failed to consider whether he should grant a permission subject to a condition limiting the time for which the caravan could be stationed on the site. The problem with that criticism is that the inspector was considering, as paragraph 5 of the decision letter makes clear, the retention of the mobile home on a temporary basis anyway. It follows, therefore, that the question of a temporary condition added nothing to the debate before him; that was the very basis upon which he was considering matters and in relation to which he reached a judgment of fact and degree which, in my judgment, cannot be impugned as a matter of law.
64. Accordingly, for the reasons which I have given, this application must be dismissed.

MR WARD: I ask for costs on behalf of the Secretary of State.

MR JUSTICE OUSELEY: Mr Hickmet?

MR HICKMET: My Lord, there is not a great deal I can say to that application.

MR JUSTICE OUSELEY: No. Have you seen the statement?

MR HICKMET: My Lord, I have. My Lord, we prepared the bundle. I do not know whether 13 and a half hours on documents is --

MR JUSTICE OUSELEY: Can you say anything about that?

MR WARD: I would make two points, my Lord, one specific to that line. I understand that part of that time represents a drafting of a witness statement in the name of the inspector. On whether it is excessive, I would not say it is excessive in my submission. Also the overall total is in fact lower than that of the claimants.

MR JUSTICE OUSELEY: Yes. It is a problem for those who challenge the Treasury; in my experience they always come in lower than anybody else.

MR HICKMET: Do they, my Lord?. Well, my Lord, I make the submission for what it is worth that 13 and a half hours on documents, and the inspector's statement, with the greatest of respect, is not a long one. Whether, my Lord, that is really proportionate or fair. My Lord may take the view that that is a figure that ought to be taxed down.

MR JUSTICE OUSELEY: I am going to order the payment of costs in the sum of £7,500. I have taken off a small amount in respect of the time spent on documents, it does seem to me high in the light of the fact that you did not have to prepare the bundles but I recognise there were witness statements to be prepared.