Tyack v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Roskill,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle |
| Judgment Date | 07 December 1989 |
| Judgment citation (vLex) | [1989] UKHL J1207-1 |
| Date | 07 December 1989 |
| Court | House of Lords |
[1989] UKHL J1207-1
House of Lords
Lord Bridge of Harwich
Lord Roskill
Lord Ackner
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
My Lords,
The appellant owns and occupies a dwelling house called "Newlands" in the village of Bledington, Gloucestershire. The house is on the edge of the village, being the last in a row of houses on the north-east side of the road which runs south-east out of the village. It has a curtilage of about half an acre. The appellant farms some 10 acres of land to the south-east of Newlands but separated from it by a farm track five metres wide which is not in the appellant's occupation.
In 1984 the appellant built a barn in the curtilage of Newlands. The Costwold District Council as local planning authority served an enforcement notice under section 87 of the Town and Country Planning Act 1971 alleging that the erection of the barn was a breach of planning control and requiring its demolition. The appellant appealed to the Secretary of State under section 88 on the ground that the erection of the barn was development permitted by Article 3 and Schedule 1, Class VI of the Town and Country Planning General Development Order 1977 ( S.I. 1977 No. 289). The inspector appointed by the Secretary of State to determine the appeal dismissed it. The appellant appealed to the High Court under section 246 of the Act and his appeal was allowed by Nolan J.. The Court of Appeal reversed the decision of Nolan J.. The appellant now appeals by leave of your Lordships' House.
Article 3 of the Order of 1977 grants planning permission for the classes of development described in Schedule 1 subject to the conditions imposed thereby. Class VI of Schedule 1, so far as material, reads:
"The carrying out on agricultural land having an area of more than one acre and comprised in an agricultural unit of building … operations … requisite for the use of that land for the purposes of agriculture … ."
There follow a number of conditions with which the appellant's barn complies. The Order of 1977 adopts the definitions of"agricultural land", "agricultural unit" and "agriculture" in section 109 of the Agriculture Act 1947 which, so far as material, reads:
"'agricultural land' means land used for agriculture which is so used for the purposes of a trade or business"
"'agricultural unit' means land which is occupied as a unit for agricultural purposes, including … any dwelling-house or other building occupied by the same person for the purpose of farming the land"
"'agriculture' includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and 'agricultural' shall be construed accordingly."
The issues which arise are, first, whether the curtilage of Newlands is "agricultural land" and, second, if so, whether it can be aggregated with the neighbouring land farmed by the appellant for the purpose of determining the area of the land on which the barn was built so as to comply with the statutory minimum requirement.
The inspector determined the first issue by considering the character of Newlands and its curtilage as a distinct parcel of land in the light only of the evidence directly related to its use. He accepted that there had been animals on the land from time to time, but decided that this "was of a casual, intermittent and insignificant nature and not an activity or enterprise of sufficient substance to have amounted to an agricultural use of the land." On this basis he concluded that the curtilage was not "agricultural land" within the meaning of the Order of 1977. It is accepted, on behalf of the appellant, that, if the inspector was entitled to consider the character of Newlands and its curtilage as an entity distinct from the 10 acres of neighbouring land farmed by the appellant, this finding of fact cannot be challenged. The appellant contends, however, that he was not so entitled. It is said that, if a dwelling house and its curtilage are occupied by a farmer who farms neighbouring land, the question whether the house and curtilage are agricultural land must be answered, not by considering the house and curtilage as a separate entity, but by considering all the circumstances, physical, functional and historical, relating to the occupation of both the farmland and the dwellinghouse from which the farmer directs the farming operations. In the light of this consideration the question whether the house and curtilage are agricultural land should be determined, it is submitted, as a question of fact and degree.
The cornerstone of the argument advanced in support of the appellant's case is the decision of the Court of Appeal in Blackmore v. Butler [1954] 2 Q.B. 171. The issue in that case was whether a tenant farmer who held an agricultural labourer's cottage under a different lease from the lease under which he held the farm was entitled to the security of tenure...
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