Denys Christopher Shortt and Another v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWHC 2480 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/17262/2013 |
| Date | 22 July 2014 |
[2014] EWHC 2480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/17262/2013
Peter Goatley (instructed by Harrison Clark Rickerbys) for the Claimant
Suella Fernandes (instructed by the Treasury Solicitor) for the First Defendant
The Second Defendant was not represented and did not appear
Hearing date: 30 June 2014
Further written submissions 7–14 July 2014
Introduction
This claim concerns land owned and occupied by the Claimants ("Mr & Mrs Shortt") at Buckland Manor Farm, Buckland, Broadway, Worcestershire. The Second Defendant ("the Council") is the relevant local planning authority.
The history of the land is as follows. In 1974, a Mr Brookes applied to the Council for permission to construct a dwelling at Buckland Manor Farm to serve his 83 hectare agricultural unit based on stock and arable farming. Planning permission was granted, subject to a condition, important to this claim, in the following terms:
"The occupation of the dwelling shall be permitted 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."
I shall refer to this as "the Planning Condition".
The house was duly built, although not in accordance with the plans. In 1975, the Council granted planning permission for the dwelling as built, and subject to the same Planning Condition.
In 1976, Mr Brookes sold off 67.4 hectares, retaining the dwelling and the rest of the land which, save for one small level 5-acre grass field, comprised steep-sided permanent pasture. In 1984, that dwelling and land was sold to the parents of the Second Claimant, Mrs Shortt. In 1994, they sold it to the Claimants. Shortly after acquiring it, Mr & Mrs Shortt bought a further 6.27 hectares of steep-sided pasture adjoining the farm, so that they have about 22 hectares of land, with one 5-acre field and the rest steep-sided pasture akin to moorland.
Prior to buying Buckland Manor Farm, Mrs Shortt ran a herd of cattle and a small flock of breeding ewes at her husband's farm in Winderton, Worcestershire. The cattle were sold off, but about 20 sheep were transferred to Buckland Manor Farm. In 2001, she began a pedigree breeding herd of Belted Galloway cattle, and, in 2006, she disposed of the sheep. She currently only keeps the cattle, the herd being made up of eight breeding cows, five heifers and two fattening steers. The only acreage on the site for grazing or hay production is the 5-acre field, with the result that, in winter, Mrs Shortt is obliged to buy in fodder to supplement her stock's feed ration. She has also turned nearly 12 acres to use in woodland grant schemes.
The total labour requirement for the farm is about 35 standard man days, which is less than one-fifth of a full time equivalent. In each of the years 2002 to 2007, the accounts of the farm show that Mrs Shortt made a loss of between £13,000 and £40,000, except in 2003 when she undertook some consultancy work unrelated to the farm and the accounts show a profit for that year of nearly £21,000 because of that additional income. Mr Shortt is a successful businessman, who has not contributed to the farm at all. The only labour contribution to the farm has been that of Mrs Shortt.
In 2001 and again in 2011, the Mr & Mrs Shortt sought planning permission to extend the dwelling. In support of the later application and particularly to respond to Paragraph 3(iii) of the Secretary of State's Guidance PPS7: Sustainable Developments in Rural Areas (which stated that new permanent dwellings should only be allowed to support existing agricultural activities providing that the agricultural activity and the unit concerned have been profitable for at least one out of the last three years, and are financially sound and have a clear prospect of remaining so), the Claimants relied on a report from Rural Consultancy Service Limited ("the RCS Report"). That referred to the "profitable state" of the operations (paragraph 11) and said that the unit was "being run in a traditional and extensive approach which is profitable to the applicants…" (paragraph 10). However, both applications were, in the event, refused.
On 11 September 2012, Mr & Mrs Shortt applied to the Council for a certificate of lawfulness of use or development ("a lawful development certificate") for continued use without compliance with the occupancy condition, on the basis that, for a period of in excess of ten years, even if Mrs Shortt was an agricultural worker, she had made no profits whatsoever; and so Mr Shortt and their two infant children had not been her dependants during any of that time. In other words, there had been non-compliance with the Planning Condition for the requisite period, and therefore it was immune from enforcement under section 171B(2) of the 1990 Act and thus lawful under section 191(2).
In support of their application, Mr & Mrs Shortt relied upon Fawcett Properties Limited v Buckingham County Council [1961] AC 636, in which the House of Lords was called upon to consider a planning permission condition in (it was contended) similar terms to that in this case. Lord Keith of Avonholm said, at page 671:
"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 substinence and support".
That definition was effectively adopted in the Secretary of State's Guidance in place at the relevant time in this case, Circular 11/95: Use of Conditions in Planning Permission, at paragraph 104 and endnote 5, the endnote saying simply:
"'Dependants' means persons living in family with the person defined and dependant on him (or her) in whole or part for their subsistence and support" ( Fawcett Properties v Buckingham County Council [1961] AC 636 at page 671)".
On the basis of this authority and guidance, it was submitted by Mr & Mrs Shortt that, as she did not financially contribute to her husband or children, they were not her "dependants"; and thus the planning condition that only an agricultural worker and dependants can occupy the dwelling has been breached for over ten years, and the Claimants were entitled to the certificate they sought.
The Council did not give notice of its decision on the Claimants' application within the appropriate period, and Mr & Mrs Shortt therefore appealed to the First Defendant ("the Secretary of State") under section 195(1) of the 1990 Act. The Secretary of State appointed an Inspector to consider and determine the appeal, namely Dr Paul Dignan ("the Inspector").
Before the Inspector, the Council said that, although it had not determined the application, it would have refused to issue a lawful development certificate, because the RCS Report lodged on the earlier planning application stated that the farming enterprise was being run in a manner "profitable to the applicants". On that basis, Mrs Shortt had made a financial contribution to the family, and her husband and children (who had benefited from that contribution) were therefore her dependants within the meaning of the condition.
The Inspector considered that, although the evidence was difficult to reconcile, "profitable to the applicants" in that report could be construed in terms of non-monetary benefits (paragraph 8). However, he refused the appeal on different grounds. He dealt with the Fawcett Properties point thus:
"4. It was held in Fawcett Properties Ltd v. Buckingham County Council [1961] AC 636 (page 671) that the term 'dependants' means persons living in a family with the person defined (the agricultural occupant), and dependent on him (or her) in whole or in part of their subsistence and support, and this definition is used in Circular 11/95: Use of Conditions in Planning Permission. In this case the sole aspect of 'subsistence and support' that is said to be absent is financial, so in effect it is being argued that the condition is in breach if any of the occupiers of the dwelling do not depend, in part at least, on income generated by Mrs Shortt's agricultural work.
5. In my view this is an unnecessarily restrictive interpretation of the wording of the condition. In the context of people living in a family, the words subsistence and support are capable of having a non-monetary construction. Further, were the meaning of 'dependent' in the condition to be invariably interpreted as financial dependent, it would leave members of a family who lived in a dwelling whose occupation was the subject of such a condition, but who were not themselves working in agriculture, at risk of enforcement action whenever the agricultural worker's income fell below a level deemed to establish dependency, which would be a nonsense. I consider that the wording of the condition should be interpreted so as to avoid such a possibility, having regard to the potential impact on, or interference with, ordinary family life.
6. In this context it is also worth considering what Keene LJ, in [ Swale Borough Council v First Secretary of State and Lee [2005] EWCA Civ 1568], set out as the ultimate test in...
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