QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
33 Bull Street, Birmingham B4 6DS |
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B e f o r e :
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Paul William George Brook |
Appellant |
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(1) The Secretary of State for Communities and Local Government (2) East Staffordshire Borough Council |
First Respondent Second Respondent |
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Mr Gwion Lewis (instructed by Treasury Solicitor) for the First Respondent
Hearing date: 11 December 2013
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Crown Copyright ©
Mr Justice Stewart :
Procedural Background
"1. That permission to proceed with the claim for judicial review be granted.
2. The application to extend is granted."
"(i) Paragraph one of the order of 15 June 2012 be amended under the slip rule, so that it reads: that permission to appeal be granted limited to the Appellant's first Ground, namely that the Inspector acted unreasonably and unlawfully by concluding that, for the purposes of section 174(2)(a), the functional need test was not satisfied."
In his observations Hickinbottom J wrote:
"…the application for permission was heard by Beatson J…on 15 June last year. I have a transcript of the judgment ([2013] EWHC 4368(Admin)). I consider it is clear beyond any doubt from that transcript that the judge gave permission to appeal on one Ground only, ie. the Appellant's first Ground (see paragraph 7 and following, and paragraphs 29 – 33). Paragraph 33 made it clear beyond doubt that he was granting permission on "this Ground and on this Ground alone". The order produced did not reflect that. It refers to a judicial review rather than a statutory appeal, and it does not restrict the Grounds as Beatson J clearly did. I have made an order amending that order under the slip rule. If any party considers that Beatson J might conceivably have intended to grant permission wider than that, then I have given permission to apply. I know that the Claimant is currently seeking legal advice on the scope of permission; but I have made an order in that form, without intending any discourtesy to Beatson LJ, because I consider the order he intended to make is clear beyond doubt, and it is important that this appeal is determined: it is old and has a hearing date fixed for 11 December. The appeal hearing has already been the subject of one adjournment whilst the scope of the permission was clarified. Now that that scope is clear, it is important that that fixture is not lost."
"Failed to have regard to a relevant matter, namely that the use of my land was authorised by Schedule 2, Part 5, paragraph A of the Town and Country Planning (General Permitted Development) Order 1995.
In determining that a material change of use had occurred he disregarded a relevant matter, namely the character of the existing use of the appropriate planning unit.
Alternatively, his approach to determining whether a change of use had occurred was unreasonable."
There was a detailed Skeleton Argument from Mr Leader, Counsel, dated 21 November 2013. This was for the hearing of the substantive issue on 11 December 2013 and included the supplementary grounds upon which the Appellant wished to rely.
The Inspector's Decision
"ENFORCEMENT NOTICE – OPERATIONAL DEVELOPMENT
…
3. The Matters Which Appear to Constitute a Breach of Planning Control
The erection of a dwelling without planning permission.
…
5. What You Are Required to Do.
(i) Permanently cease the occupation of the dwelling.
(ii) Demolish the dwelling and remove all arising material from the land.
6. Time for Compliance.
(i) Within 30 days beginning with the day on which this notice takes effect.
(ii) Within 60 days beginning with the day on which this notice takes effect.
7. When this Notice Takes Effect.
This notice takes effect on 27 September 2010 unless an appeal is made against it beforehand."
"53. The enforcement notice is corrected by deleting "operational development" from the heading and substituting "material change of use", and by deleting the allegation from paragraph 3 and substituting "stationing of a twin-unit mobile home used for residential purposes and the erection of a brick built plinth and porch". The notice is varied by deleting the requirements in paragraph 5 and substituting "(i) permanently cease the residential occupation of the twin-unit mobile home and attached porch (ii) remove the twin-unit mobile home from the land, demolish the brick plinth and porch and remove all the arising materials from the land", and by deleting the time for compliance in paragraph 6 and substituting "(i) within six months of the date of this decision and (ii) within seven months of the date of this decision". Subject to these corrections and variations, the appeal is dismissed and the enforcement notice is upheld, and planning permission is refused on the application deemed to have been made under section 177(5) of the 1990 Act as amended."
The Inspector's Decision: Material Findings.
(i) Town End Farm has 60 acres of farmland. There are three stone barns on the land. One was converted into the dwelling where the Appellant lives (Town End Farm), the second has been granted a Lawful Development Certificate (LDC) for use as a dwelling (Town End Barn) and third (currently derelict) has been granted planning permission for conversion to a live/work unit ("the Barn") (DL para 5).(ii) The "bottom yard" has a complex of equestrian related buildings and "the top yard" has a range of cattle and sheep buildings and the dwelling/mobile home which is the subject of the notice (DL para 6).
(iii) The twin-unit mobile home was placed on a concrete slab laid in the top yard. The electricity is supplied by underground cable, there is a bottled gas supply, and there is a piped water supply and drainage to a septic tank (DL para 9).
(iv) The twin-unit mobile home has been in place since June 2008. Though capable of being moved, the Appellant regards it as a "permanent" solution to the need to accommodate an agricultural worker close to the lambing and calving sheds. (DL para 14).
(v) The Inspector found that the primary use of the twin-unit mobile home was residential and not in a mixed residential/farm office/farm store use (DL para 19).
(vi) The main issue on appeal Ground (a) was whether, on the evidence before the Inspector, there was a need for an additional dwelling on the holding to accommodate an agricultural worker.
(DL para 24)["Section 174 of the 1990 act (so far as material) provide as follows:174-Appeal Against Enforcement Notice(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.…(2) An appeal may be brought on any of the following grounds –(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged." ](vii) Planning Policy Statement 7 Sustainable Development in Rural Areas PPS 7 includes advice relating to agricultural dwellings. Paragraph 1 of Annex A to PPS 7 refers to circumstances where isolated residential development in the countryside may be justified. This is when accommodation is required to enable agricultural (and certain other) full time workers to live at, or in immediate vicinity of their place of work. Annex A sets out two tests: the financial test and the functional test. The national policy is reflected in policy F11 (housing in open countryside) in the Staffordshire and Stoke on Trent Structure Plan 1996 – 2011. (DL paras 25 – 26).
The material parts of PPS 7 and Annex A are set out in the Appendix to this judgment.(viii) The Inspector found that the Appellant satisfied the financial test under PPS7. (DL paras 27 – 28).
(ix) In respect of the functional test he found:
(a) Mrs Hall, an experienced shepherdess and keeper of farm records, has lived in the mobile home since June 2008 (apart from six months). The evidence showed, and the Council's witness, Mr Malkin, accepted, that there was a functional need for an agricultural worker to live "very close to" the site of their work (DL paras 29 – 34).(b) The Appellant had argued that only some form of residential accommodation immediately next to the lambing and calving buildings would be suitable in view of the need for a worker to be available night and day during the lambing season (between December and May) and when calves were being born which can occur at any time of the year (DL para 34).(c) "35. Town End Farm (House 1) belongs to Mr Brook and is about 0.2 miles by from (sic) the top yard. Mr Brook lives there himself and another bedroom is occupied by Jennifer O'Neil who is employed on the farm and a third by Rebecca Cammish, who is employed as a groom. There are no tenancy agreements."(d) "36. Town End Barn (House 2) is about 0.1 miles from the top yard along the track. A lawful development certificate for use as a dwelling was granted on 27 May 2011. This house belongs to Mr Brook's sister, and an estate agent has recently been instructed to arrange for its sale. She lives elsewhere, and at the time of the enquiry it was occupied by two people employed by Mr Brook as grooms. Again, there are no tenancy agreements."(e) "37. The Barn (House 3) is next to House 2 and is currently derelict. The barn was granted planning permission to be converted into a live/work unit on 07 March 2011. It appears to be jointly owned by Mr Brook and his sister."(f) "38…all three (houses) are within walking distance of the lambing and calving sheds."(g) "40. I have carefully considered the evidence and my conclusion is that the functional need could be met by a suitable worker living in either House 1 or House 2, (or possibly in the longer term in House 3). Some form of "mess room" next to the lambing and calving sheds on the lines described by Mr Malkin could meet the need to be on hand at particularly busy periods. I see no reason why this arrangement would not work satisfactorily."(h) The Inspector then went on to consider whether the alternative accommodation was actually available. He found that in respect of House 1:"Despite Mr Brook's reluctance to entertain the idea, Mrs Hall or another suitable employee could occupy either of the rooms currently used by the two other employees. Neither of them have any form of tenancy agreement and Mr Brook could make the accommodation available to someone else at fairly short notice. It is a matter for him." (para 41).In respect of House 2 he said it was "in the family" and relied upon paragraph 5 of Annex A to PPS7 (DL paragraph 42). In respect of House 3 the Inspector noted that Mr Brook had said the holding was originally jointly purchased by himself and his sister and was subsequently divided up. The Inspector commented "it would have been prudent when organising the division of the property to ensure that sufficient accommodation for future employees was retained under his control." (DL para 43).(x) Finally on the functional test the Inspector concluded:
"44. Accommodation for a suitably qualified farm worker (not necessarily Mrs Hall) could fairly quickly be made available in House 1 by relocation one of the current occupants. There is also potentially space available in House 2, and in the longer term, possibly in House 3 also. This may not be in line with Mr Brook's wishes but I have to consider the need of the holding and not the personal preferences or circumstances of any of the individuals involved. I therefore intend to refuse planning permission for the retention of the mobile home in the top yard."
The Appellant's Challenge
"6. I understand that the Appellant asserts in his section 289 appeal that the two grooms who were residing in House 1 at the time of the Inquiry had, by virtue of a term contained in their employment contracts, a contractual right to be accommodated by the Appellant. I can confirm that no evidence to this effect was presented to me at the Inquiry. The appellant did not produce evidence to confirm that the grooms had either (i) a general right to be housed (somewhere) by the Appellant, or (ii) a specific right to be housed in House 1.
7. …
8. The Appellant was cross-examined about the grooms' occupation of House 1 and he accepted at the Inquiry that neither of the grooms had a tenancy agreement in place. The Local Planning Authority's case was that the grooms could therefore be required to leave House 1 to enable the shepherdess to be accommodated there and at no point did the Appellant give any evidence to suggest that this was not in fact legally possible."
"6. It is correct that two grooms were residing in House 1 at the time of the inquiry and had by virtue of a term contained in their employment contracts, a contractual right to be accommodated. No direct evidence was presented to the inquiry in this regard as it was not envisaged that the Inspector would simply suggest that the grooms could vacate to make way for the shepherds. I recall explaining during cross-examination that the grooms had a right to live there and both were from outside the area…."
"8. Neither of the grooms has a tenancy agreement. If I was asked this question during cross-examination then I would reply in the affirmative. However, this does not take away the contractual right of the grooms to accommodation."
……
"…it was also made clear that the grooms had no choice but to live-in occasioned by the distance their homes were situated away from the farm. I also verily believe that I pointed out to the Inspector that the grooms had a contractual right to live in at the farm although there was no tenancy agreement as such. In the circumstances, a tenancy agreement was not appropriate."
The statement is signed by Mr Brook with a Statement of Truth.
"Re: Vacancy for Groom at Town End Farm
I confirm that I am pleased to offer you employment as a groom subject the following terms:
…
3. Your accommodation to include one double bedroom for your exclusive use plus the facilities of the house including all meals."
(i) he "pointed out to the Inspector that the grooms had a contractual right to live-in at the farm although there was no tenancy agreement as such"(ii) he recalled "explaining during cross-examination that the grooms had a right to live there…"
(a) If I find that the Appellant did say to the Inspector that the grooms had a contractual right to live in the house, then the Respondent accepts that the Inspector's decision is flawed because he omitted to take account of a legally relevant consideration.(b) If the Appellant did not mention that there was a contractual right or, at least did not mention the word "right", then the Appellant accepts that he cannot successfully challenge the decision.
(c) If the Appellant did mention a "right to live there", or similar words incorporating the word "right", the Appellant submits that the Inspector had a duty to enquire further before reaching his conclusion. The Respondent disagrees.
(i) The Claimant is a qualified solicitor and has worked as a Deputy District Judge and Assistant Coroner. He is therefore a professional person whose witness evidence should be regarded as reliable.(ii) The Inspector has made some errors of fact in his decision letter. Two of these were in paragraph 5 where he said that Town End Farm was "purchased at auction" and that "the original farmhouse was not included in the sale". These were incorrect on the basis of the documents before him. He had made a legal error (the parties agreed) in paragraph 21, in relation to Ground (d) where he held that the four year rule applied rather than the ten year rule. Finally in paragraph 36 he stated in respect of Town End Barn (House 2) that "at the time of the inquiry it was occupied by two people employed by Mr Brook as grooms." This was not correct at the time of the inquiry.
(iii) It was also said that his notes were not as tidy and comprehensive as one might expect.
In respect of these points, following the same numbering, I comment:
(i) There is some merit in this point but it only goes so far.
(ii) There were no errors of substance which touch directly on this appeal (a), but I take the point that the Inspector did make some factual errors and I evaluate the rest of the evidence against that backdrop, for what it is worth.
(iii) Although the notes may have been more comprehensive/more tidy if written by another Inspector, there is nothing on the face of them to suggest that they are inadequate or inaccurate.
(i) The Inspector makes it clear at paragraph 8 of his witness statement that "at no point did the Appellant give any evidence to suggest that this was not in fact legally possible", "this" being that the grooms could be required to leave House 1 to enable the shepherdess to accommodated there.(ii) Mr Leader focussed on the words in paragraph 6 of the Inspector's statement, namely "the Appellant did not produce evidence to confirm that the grooms had either (i) a general right to be housed (somewhere) by the Appellant, or (ii) a specific right to be housed in House 1". He said that the use of those words was indicative that the Appellant had given evidence of such a right but had merely not backed it up with documentary proof. I reject that submission in the light of the clear words in paragraph 8.
(iii) I regard it as extremely unlikely that if the Appellant had mentioned a "contractual right" or a "right" that the Inspector could possibly have come to the decision which he did in paragraph 35 and 41 of the decision letter. I reject Mr Leader's submission that what probably happened is that the Inspector (and others) conflated absence of a tenancy agreement with no right to occupy. There was a qualified Inspector and both sides were represented by Counsel. It is practically inconceivable that this error, as alleged, could have occurred. It is contrary to the weight of the evidence in any event.
(iv) Although it is unusual, inspectors may be cross-examined at a substantive hearing. There was no application to do this. At the outset it was submitted that there was no inconsistency between the evidence of the Appellant and that of the Inspector. This was wrong.
(i) Evidence which appears to have been given by Mrs Hall, the shepherdess as follows:"Q: says you could go in the farmhouseA: the LDC barn has two grooms in it"I was asked to assume that the LDC meant House 1. Even if this is correct, it falls far short of making out the submission that the shepherdess could not go in House 1 because the two grooms had any legal right to remain in it.
(ii) In what appeared to be evidence from the Appellant "Mrs Hall can't live in my house – taken by two grooms now. 1. Jennifer O'Neil – there since 2003, 2. Plus another from Filey, Rebecca Cammish – for one year." In my judgment this does not advance the Appellant's case.
(iii) A submission by Counsel for the Appellant (who was not Mr Leader) to the Inspector that the "grooms' accommodation will be lost – but this comes with the job – Rebecca needs accommodation too. Not realistic to pay her rent for a room in town." I do not accept that "this comes with the job" means that there was evidence of a right or a contractual right. Indeed it is remarkable that there is no reference by Counsel to any right or any contractual right in his submissions. If anything, this favours the Respondent's case.
(iv) There is also a reference in the notes to "the farmer in one bedroom and the staff in two others. We've got a full house – no room for admin too." In my judgment, this does not take matters any further.
[Although it is apparent from the above notes that, in my judgment, the Inspector's recollection is confirmed rather than undermined, there is another passage in what appears to be evidence from Mr Brook. This was not referred to at the hearing because of the circumstances in which the notes arose. I therefore emphasise that I would have made this same decision apart from this extract. Nevertheless for the purposes of recording it, there appears to be some questioning about Rosemary Cammish where the note reads as follows:
"Rosemarynotpaying rent? A: No. No tenancy agreement. Registered on Elec Roll? No. None of the workers want to go on the list. "]
"2.5 …no substantial evidence has been submitted to support the need for an additional dwelling in this location. The need to live close to livestock on occasions is agreed, however within walking distance of the farm buildings is the existing Town End Farmhouse, a barn on which the Council is currently considering a planning application… for conversion to a live/work unit, and a stone barn, that the applicant has contended via a Certificate of Lawfulness application…has been used as a dwelling for over four years.
2.6 It is therefore noted that there is already in place two dwellings, albeit one that is currently unauthorised, and a barn which is the subject of a planning application for conversion to a live/work unit. If this is successful then there will be three dwellings linked to Town End Farm, which would be sufficient to house all necessary workers for a farm that extends to 225 acres (90 hectares) should a need be proven in the first place.
…
4.6…There is sufficient residential accommodation already available for this unit, without the dwelling which is the subject of the appeal, for a farm unit of this scale."
"…the question for the Court is, did the Secretary of State ask
himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer correctly?"
In E v Secretary of State for the Home Department [2004] QB1044; 2004 EWCA Civ 49, Carnwath LJ (as he then was) at paragraph 64 referred to the Tameside case and pointed out that in certain spheres eg. the Council and the Secretary of State in Tameside and asylum cases in E, "it is in the interests of all parties that the decision should be made on the best information". Earlier in paragraph 64 he has said:
"64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis."
Nevertheless the underlying principle referred to in these cases must depend on the particular circumstances. A planning inquiry is a very different animal from the type of decision made in the Tameside case. This is particularly so where both sides are represented by Counsel and the Appellant himself appeared before the Inspector as a qualified solicitor and a businessman, apart from other judicial offices which he held. In that particular context if Mr Brook had said that the grooms had a right to be there but had in no way linked this to any legal right and had specifically said there was no tenancy, I do not accept that the Inspector was under a duty himself to enquire further. He would have been perfectly entitled to assume that, absent any alleged legal right by the Appellant, the Appellant was merely referring to some moral right.
Conclusion
Upon hearing Counsel for both parties:
IT IS ORDERED THAT
1. The appeal be dismissed.
2. The Appellant do pay the First Respondent's costs summarily assessed at £12,749.
Appendix
PPS7 - Sustainable Development in Rural Areas
"10. Isolated new houses in the countryside will require special justification for planning permission to be granted. Where the special justification for an isolated new house relates to the essential need for a worker to live permanently at or near their place of work in the countryside, planning authorities should follow the advice in Annex A to this PPS."
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Annex A
….
4. 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:
(i) in case animals or agricultural processes require essential care at short notice;
….
Temporary Agricultural Dwellings
12. If a new dwelling is essential to support a new farming activity, whether on a newly-created agricultural unit or an established one, it should normally, for the first three years, be provided by a caravan, a wooden structure which can be easily dismantled, or other temporary accommodation. It should satisfy the following criteria:
(i) clear evidence of a firm intention and ability to develop the enterprise concerned (significant investment in new farm buildings is often a good indication of intentions);
(ii) functional need (see paragraph 4 of this Annex);
(iii) clear evidence that the proposed enterprise has been planned on a sound financial basis;
(iv) the functional need could not be fulfilled by another existing dwelling on the unit, or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned; and
(v) other normal planning requirements, e.g. on siting and access, are satisfied."