QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| Harold William Rencher-Paine
(named in the planning application as Harold Paine)
|- and -
|Secretary of State for Communities and Local Government
Newark and Sherwood District Council
Stephen Whale (instructed by Treasury Solicitor) for the First Respondent
The Second Respondent was not represented and did not appear
Hearing date: 4 February 2011
Crown Copyright ©
Frances Patterson QC Sitting as a Deputy Judge of the High Court:
The Decision Letter
ii) "The need relates to a full time worker, or one who is primarily employed in agriculture and does not relate to a part time requirement;
iii) The unit and the agricultural activity concerned have been established for at least three years, have been profitable for at least one of them, are currently financially sound, and have a clear prospect of remaining so (see paragraph 8 below);"
Paragraph 7 of Annex A goes on to consider the position if a functional requirement is established when it is then necessary to consider the number of workers needed to meet it, for which the scale and nature of the enterprise will be relevant.
Ground 1 The Functional Test
Ground 2 The Financial Test
i) The unit and the Agricultural activity has been established for at least three years;
ii) The enterprise had been profitable for at least one of those years (it had in fact been profitable since at least 2006);
iii) The enterprise was financially sound at the current time;
iv) There was no reason to suggest that the enterprise would not remain financially sound.
In particular, it was submitted that the inspector made no finding in relation to the 2008 decision letter where that inspector had found that there was a clear prospect that the enterprise would remain financially sound. Next, it was submitted that the inspector compared the cost of financing the dwelling with the current profits generated by the unit. She, therefore, erred in that she omitted to consider the clear financial soundness in the future.
New permanent accommodation cannot be justified on agricultural grounds unless the farming enterprise is economically viable. A financial test is necessary for this purpose, and to provide evidence of the size of dwelling which the unit can sustain. In applying this test (see paragraph 3(iii) above), authorities should take a realistic approach to the level of profitability, taking account of the nature of the enterprise concerned. Some enterprises which aim to operate broadly on a subsistence basis, but which nonetheless provide wider benefits (e.g. in managing attractive landscapes or wildlife habitats), can be sustained on relatively low financial returns.
The fundamental issue here is whether taking account of Annex A paragraph 3 (iii) the inspector took a lawful approach to the issue of whether the enterprise had a clear prospect of remaining financially sound. The preceding three steps of the financial test in paragraph 3 (iii) were not in dispute before the inspector.
Ground 3 Significant Harm to the Open Countryside