Denys Christopher Shortt and Another v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sales,Mr Justice Bodey |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1192 |
| Date | 18 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/2639 |
[2015] EWCA Civ 1192
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT AT BIRMINGHAM
Mr Justice Hickinbottom
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sales
and
Mr Justice Bodey
Case No: C1/2014/2639
Martin Kingston QC (instructed by Harrison Clark Rickerbys) for the Appellants
Jonathan Moffett (instructed by The Government Legal Department) for the First Respondent
The Second Respondent was not represented and did not appear on the appeal
Hearing date: 27 October 2015
This appeal concerns the meaning of "dependants" in an agricultural occupancy condition attached to a planning permission granted in 1975 in respect of a dwelling at Buckland Manor Farm, Buckland, Broadway, Worcestershire. The condition in question is in these terms:
"The occupation of the dwelling shall be limited to persons employed or last employed solely or mainly and locally in agriculture as defined by Section 290(1) of the Town and Country Planning Act, 1971, or in forestry and the dependants (which shall be taken to include a widow or widower) of such persons."
The appellants, Mr and Mrs Shortt, bought the dwelling and the related holding in 1994 and have occupied the dwelling since then, together with their two children (born in 1991 and 1993 respectively). The major part of the land originally comprised within the holding had been sold off in 1976, but the appellants acquired some additional land soon after their purchase of the holding, with the result that the holding comprised in total some 22 hectares of agricultural land of variable quality. The land has been farmed by Mrs Shortt. It is not in dispute that she herself satisfies the condition as a person employed mainly and locally in agriculture. But the farming business has operated at a substantial loss and has not contributed to the financial support of Mr Shortt or the children. Mr Shortt himself is a successful businessman and it is his income that has provided financial support for the family.
On that basis the appellants contend that Mr Shortt and the children are not "dependants" of Mrs Shortt within the meaning of the condition and that their occupation of the dwelling has been at all material times in breach of the condition. If correct, this has the consequence that they are immune from enforcement action pursuant to section 171B(3) of the Town and Country Planning Act 1990 ("the 1990 Act") and are entitled to a certificate pursuant to section 191(2) of the 1990 Act that the existing use of the dwelling is lawful. It is their application for such a certificate that has given rise to the present proceedings.
The local planning authority, Tewkesbury Borough Council, failed to give notice of its decision on their application within the time laid down. They appealed to the Secretary of State against the failure to give notice. The inspector appointed by the Secretary of State to determine the appeal, Mr Paul Dignan MSc PhD, took a broad view of the meaning of "dependants" in the condition and dismissed the appeal, holding that occupation by Mr Shortt and the children had not been in breach of the condition. A challenge under section 288 of the 1990 Act to the inspector's decision was dismissed in the Planning Court by Hickinbottom J, who took a similar view of the construction and effect of the condition. An appeal is now brought to this court against Hickinbottom J's order, with permission granted by the judge himself.
Agricultural occupancy conditions: background
It is convenient to start with the decision of the House of Lords in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 because that decision forms the backdrop for the argument in this appeal. The case concerned a grant of planning permission subject to the following agricultural occupancy condition:
"The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119(1) of the Town and Country Planning Act, 1947, or in forestry or in any industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid."
The language of the condition echoed that of section 115(2) of the Housing Act 1936, which defined "agricultural population" as "persons whose employment or latest employment is or was employment in agriculture or in an industry mainly dependent upon agriculture, and includes also the dependants of such persons as aforesaid".
The issues decided by the House of Lords related to the validity of the condition and included arguments that the condition (i) was ultra vires the statutory power to grant planning permission subject to conditions (then section 14(1) of the Town and Country Planning Act 1947, now section 70(1)(a) of the 1990 Act) and/or (ii) was void for uncertainty. It was in rejecting the uncertainty argument that Lord Keith of Avonholm made relevant observations about the meaning of the condition. He said:
"… Reading the condition as a whole I do not find any insuperable difficulty in arriving at a reasonable and clear idea of the content of the condition. It refers in the first place to 'the occupation of the houses', which I read as being confined to occupation by persons having certain defined qualifications and to the dependants of these persons. There may be a certain ambiguity here, but your Lordships are not concerned here with resolving ambiguities or placing a considered and final meaning on the condition. Speaking for myself I would not read the occupation as covering an independent occupation by dependants of the persons mentioned, but as including occupation by such dependants while living in family with such persons and occupying the houses along with them. Death, or removal from the houses, of the persons defined would terminate the occupation of the dependants. Nor can I see any difficulty in construing 'dependants', when brought within the confines of a house, as meaning persons living in family with the person defined and dependent on him in whole or part for their subsistence and support…" (page 671, emphasis added).
The italicised words have been picked up in later guidance, as referred to below, but it is clear both from the context and from the quoted passage as a whole that they were not intended to be a definitive interpretation of "dependants" in the condition there under consideration. Nor were they endorsed by the other members of the Appellate Committee. They are not binding even in relation to the interpretation of a condition in identical terms to that under consideration in Fawcett Properties, let alone in relation to a condition in different terms (and the express inclusion of "a widow or widower" in the present condition is an obvious difference).
The only other member of the Judicial Committee to express a specific view about the meaning of the condition in Fawcett Properties was Lord Denning. In the context of the ultra vires argument, he summarised the relevant principles relating to the imposition of planning conditions, including that they must fairly and reasonably relate to the permitted development. He went on to say:
"The condition, properly construed with the reason, means, I think, that the occupation of the cottages must be limited to persons who are employed in agriculture in the locality or in a local industry mainly dependent upon agriculture in the locality. The word 'occupation' is used to denote the head of the household. The word 'latest' to show that he may stay on in the cottages after his retirement. The word 'dependants' to show that he may have with him his wife and family and anyone else dependent on him. So construed it seems to me that the condition fairly and reasonably relates to the permitted development. Its effect is to ensure that the cottages will be occupied by persons who will help to maintain the normal life and character of this part of the green belt and not by outsiders to use as a dormitory. The cottages are for farm-workers or for men who work at the smith shoeing horses, at the mill grinding the corn, or at the saw mills cutting up wood; or in modern times at the milk depot bottling the milk or at the repair shop mending the tractors; and so forth. They are not for people who go up and down to London every day" (page 680, emphasis added).
Since reference has been made in the course of argument to national policy guidance in force at various times, I will refer to that guidance here, whilst noting that much of it post-dated the grant of planning permission to which the condition in this case was attached.
Circular 5/68 contained the national guidance on the use of conditions in planning permissions which was in force at the time when the relevant permission was granted. It explained the circumstances in which an agricultural occupancy condition might be imposed:
"26. In exceptional cases it may be necessary to impose an occupancy condition in the case of a house required for an agricultural worker, or to enable a smallholding to be better managed. Where such a house is proposed for a site where a house would not normally be permitted apart from the agricultural reasons, for example, in a green belt, it may be a material planning consideration that the house shall meet that express need. If it is proposed to grant...
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