James Symons Hancock v Secretary of State for The Environment and Another
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,LORD JUSTICE STAUGHTON |
| Judgment Date | 21 June 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0621-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0528 |
| Date | 21 June 1988 |
[1988] EWCA Civ J0621-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDERS OF MR JUSTICE HODGSON AND
MR JUSTICE NOLAN
Royal Courts of Justice
The Master of the Rolls (Lord Donaldson)
Lord Justice Glidewell
Lord Justice Staughton
88/0528
and
and
The Hancock appeal.
MR N.P. PLEMING, instructed by the Treasury Solicitor, appeared for the Appellant (First Respondent).
MR R.L. FOOKES, instructed by Messrs Badhams, appeared for the First Respondent (Appellant).
MR A.D. DINKIN, instructed by J.M. Wyatt Esq. (Bideford), appeared for the Second Respondent (Second Respondent).
The Tyack appeal:
MR N.P. PLEMING, instructed by the Treasury Solicitor, appeared for the Appellant (First Respondent).
MR A.D. DINKIN, instructed by Messrs Thomas M. Barth & Co., appeared for the Respondent (Appellant).
I will ask Lord Justice Glidewell to deliver the first judgment.
Both these appeals relate to the proper interpretation of Class VI of Schedule 1 to the Town and Country Planning (General Development) Order 1977. Both raise, though on different facts, the question whether a house occupied by a farmer and its garden, which are physically separated from the remainder of the land comprising the farm, can be held to be "agricultural land" within the meaning of the General Development Order, and if so in what circumstances. For this reason we have heard the appeals together.
MR HANCOCK'S
Mr Hancock occupies a farm some 45 acres in extent at Roborough in Devon. His house is on the north side of a road running east to west through the village of Roborough, and a short distance from the classified road which runs north out of the village. It stands in a curtilage which includes a number of farm buildings and a garden. Surprisingly, the Secretary of State for the Environment did not find as a fact what area the curtilage of the house occupies. Mr Justice Hodgson, from whose decision this appeal lies, was led to believe it was 1.1 acres, but it is now accepted that it is most probably well below 1 acre. Adjoining the western northern and eastern boundaries of this curtilage are other houses, as there are on the south side of the road facing the curtilage. Two of the fields Mr Hancock occupies are close to his house, one to the south-west and one on the north side of the road and a short distance to the west.
In 1983 Mr Hancock constructed a silage clamp on the northern boundary of the curtilage of his house. It is agreed that the construction of the clamp was development within section 22 of the Town and Country Planning Act 1971 for which planning permission was required. No express permission was obtained.
On 3rd August 1983 the Torridge District Council served on Mr Hancock an enforcement notice alleging that the construction of the silage clamp was a breach of planning control and requiring him to remove the clamp from the land.
Mr Hancock appealed to the Secretary of State under section 88 of the 1971 Act on grounds (a) and (b) in subsection (1) of that section, that is, that planning permission ought to be granted for the development, or that the matters alleged in the enforcement notice did not constitute a breach of planning control. The Secretary of State decided that planning permission should not be granted, and there is no challenge to his decision in that respect. For reasons I shall explain later, it was accepted that the appeal on ground (b) could only succeed if the silage clamp were at least 25 metres from a classified road, and the distance between the clamp and the road running out of the village to the north was just over 22 metres. However, the Secretary of State considered another ground of appeal, that is to say, ground (g), which is that the steps required to be taken by the notice exceeded what was necessary. In other words, this raised the issue whether, if the edge of the clamp were moved to a position at least 25 metres from the road, its construction would then constitute a breach of planning control. It is around this question that the main argument has centred. The Secretary of State decided that, even if the clamp were moved in that way, it would still constitute a breach of planning control and dismissed the appeal to him.
Mr Hancock appealed against that decision under section 246 of the 1971 Act. On 28th November 1986 Mr Justice Hodgson allowed his appeal and remitted the matter to the Secretary of State. The Secretary of State now appeals to this court against that decision.
MR TYACK'S
Mr Tyack has lived at Newlands in Bledington in Gloucestershire since 1944. Newlands was built as a dwelling-house in 1919 or 1920. Until Mr Tyack purchased the house it was solely in residential occupation. From the time he purchased it, however, he began to direct his widespread farming and other businesses from that property. He had interests in contracting as well as in farming. Some of his farming interests were as far away as Derbyshire.
Newlands itself stands in about half an acre of land, and since about 1944 Mr Tyack has owned or rented about 10 additional acres of land in the vicinity. Two and a half acres of land is divided from the curtilage of Newlands by a field access which is not in his ownership or occupation and which runs to other land at the rear which he also does not own or lease. This is a rough track about 5 metres wide. The remaining 7 acres of the 10 lies to the north and east of this field and is owned by Mr Tyack.
In about 1964 Mr Tyack gave up his principal farming interests in other areas, but he continued to farm the 10 acres in the immediate vicinity of Newlands. In March or April 1984 he began to build a barn at the back of the half acre of garden. He said he did so for the purpose of storing feedstuffs to be given to calves which were from time to time kept by him in the garden at Newlands or on some rough grass beside the house. Without the barn it would have been necessary for his wife to walk a distance of some 100 yards or so to one of the adjoining fields to fetch the food from another building. The barn he constructed is 60 feet long by 20 feet in width and it lies to the side and rear of the house. It was described by the inspector who decided, this appeal as having "a gaunt silhouette and featureless elevations". One end of it lies about 5 yards from the main living-room window of an adjoining house.
On 14th August 1984 the Cotswold District Council served on Mr Tyack an enforcement notice alleging that the construction of the barn was a breach of planning control, in that no express planning permission had been granted. The notice required Mr Tyack to demolish the barn and remove the materials resulting from such demolition from the site.
Mr Tyack appealed against the enforcement notice, also on grounds (a) and (b) in section 88(1) of the 1971 Act. The inspector to whom the decision on the appeal was delegated held an inquiry on 3rd June 1985, and by letter dated 31st July 1985 he dismissed the appeal.
Mr Tyack appealed to the High Court against that decision. On 4th June 1987 Mr Justice Nolan, hearing the Crown Office List, followed Mr Justice Hodgon's decision in the Hancock case, allowed Mr Tyack's appeal and remitted the matter to the Secretary of State. The Secretary of State now appeals to this court against that decision also.
Both the construction by Mr Hancock of the silage clamp and the building by Mr Tyack of the barn were development for which planning permission was necessary. Both respondents to this appeal claim that such permission was granted to them by the Town and Country Planning General Development Order 1977.
Article 3 of that Order permits development described in Schedule 1 to the Order, on land to which the order applies, without express permission but subject to the conditions imposed by Schedule 1. So far as is material, Class VI of Schedule 1 reads:
"The carrying out on agricultural land having an area of more than one acre and comprised in an agricultural unit of building or engineering operations…requisite for the use of that land for the purposes of agriculture…so long as:—", and then there are three conditions of which the third is:
"(c) no part of any buildings (other than moveable structures) or works is within 25 metres of the metalled portion of a trunk or classified road."
By Article 2 of the Order "agricultural land" and "agricultural unit" have the meanings assigned to those expressions in the Agriculture Act 1947. By section 109 of that Act those terms are defined as follows:
"109(1) In this Act the expression 'agricultural land' means land used for agriculture which is so used for the purposes of a trade or business". The rest of the subsection does not arise.
"(2) In this Act the expression 'agricultural unit' means land which is occupied as a unit for agricultural purposes, including—
(a) any dwelling-house or other building occupied by the same person for the purpose of farming the land", and the remainder of that subsection does not arise.
By subsection (3) "agriculture" is defined as:
"…..includes horticulture, fruit growing, seed rowing, dairy farming and livestock breeding and keeping", and various other matters which are not here relevant.
It is apparent that the definitions in the 1947 Act draw a distinction between agricultural land and an agricultural unit. The latter is obviously a wider...
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