Boat Plans Canada | Agricultural dwellings the operational need test

Boat Plans Canada

On Monday 2 April 2012 , I published a post entitled “Agricultural development after the NPPF” in which I suggested that there need not be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions.

I felt that without referring to the detailed guidance set out in Annex A of PPS7, it would be difficult in practice to give effect to the policy set out in paragraph 55 of the NPPF, which simply provides that isolated homes in the countryside should be avoided unless there are special circumstances such as (among other things) the essential need for a rural worker to live permanently at or near their place of work in the countryside. Unlike PPS7, the NPPF offers no guidance as to how “the essential need for a rural worker to live permanently at or near their place of work” is to be assessed in practice, whereas Annex A of PPS7 was notably prescriptive in setting out the criteria that would have to be met in order to prove that need.

I concluded that De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annex A of PPS7 in the form of a Circular. Failure to do so, I surmised, could lead to legal disputes which might otherwise be avoided.

I am grateful to a correspondent for drawing my attention to just such a dispute. This was an application for judicial review of a planning permission in the High Court in R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin). It was what can only be described as a ‘root and branch’ attack on the grant of planning permission in this case, which included a temporary permission for an agricultural dwelling. I propose, however, to confine myself to the challenge regarding the operational justification for an agricultural dwelling. This, as well as every one of the other grounds of challenge, was rejected by the court.

It was common ground between the parties that government guidance was a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27th March 2012 and paragraph 55 of NPPF thereafter. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis, whereas Paragraph 55 of NPPF is merely expressed in the terms I have quoted above. Thus, the judge observed, the guidance in paragraph 55 of NPPF is significantly less onerous than it was in PPS7.

The judge accepted that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular he did not accept the claimant’s submission that the NPPF requires that the proposal is economically viable. As the LPA pointed out, this was a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there [although, in my own view, this seems to beg the question as to how that essential need is to be objectively assessed]. In the event, the judge agreed that the evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced. In his view the Committee were entitled to accept that evidence. It was not an irrational decision.

His lordship equally agreed that the decision was not invalidated by the failure to provide the agricultural expert’s figures to the Committee. The figures were not available at the date of the meeting. It was not in dispute that the Committee were provided with an expert report and that a principal objector had the opportunity to address the meeting. In the course of his submissions the objector criticised the expert’s report, so the issue was before the Committee. The Committee were nevertheless entitled to reject that submission and plainly did so.

The learned judge held that, whilst it was no doubt open to the Committee to reject the planning application it could not in his view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let. A short term let is terminable after 6 months, which is far shorter than the 3 years for which the temporary permission was granted. In those circumstances the decision to grant the permission could not in his view be said to be irrational or unreasonable.

This judgment would tend to suggest that my supposition that an objective test substantially similar to the detailed test required by Annex A to PPS7 would still have to be applied in order to give effect to paragraph 55 of the NPPF may not be supported by the courts, in light of the much less prescriptive language used in that paragraph of the NPPF. I cannot believe that this is what ministers intended, but it would appear that their insistence on cutting the statement of ministerial planning policy to the bare bone may have come back to bite them.

[UPDATE: In light of the Court of Appeal decision in Redhill Aerodrome v. SSCLG (see now Interpreting the National Planning Policy Framework (6 November 2014), there must be some doubt as to the correctness of the approach taken by the High Court in Embleton PC.]

© MARTIN H GOODALL

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Boat Plans Nz | Green Belt policy – the need for reform

Boat Plans Nz

Last week I came across a useful contribution to the Green Belt debate by Peter Village QC and Jonathan Darby, which you can access at http://www.39essex.com/docs/general/pv_and_jda_green_belt_article_final_.pdf

They call (as I and other commentators have done recently) for a sensible rethink of Green Belt policy, rather than the die-hard defence of existing Green Belt boundaries that ministers have lately adopted (undoubtedly for what they perceive as their short-term electoral advantage in the run-up to the General Election), irrespective of its proper role and value in policy terms, and irrespective of the consequences of such an unyielding approach in terms of unbuilt homes to meet the urgent needs of our population.

There are two important points that must be understood about the Green Belt. First, our Green Belts have been massively expanded within the past 30 to 40 years. The Green Belt was never intended to cover such vast swathes of land as it does now, and it really does need to be objectively reviewed and rolled back in some areas. Secondly, until the late 1980s, there was some flexibility in the application of Green Belt policy.

This was well illustrated by the judgment in Cranford Hall Parking Ltd v. SSE [1989] J.P.L. 169. Relevant policy at that time was set out in Circular 14/85, which was couched in language not dissimilar to later policy statements in PPG2, yet not in such absolute terms. The Circular pointed out quite clearly that the fact that a site was Green Belt land did not in itself constitute a clear-cut and sound reason for refusing permission. The court, in quashing an appeal decision which had refused planning permission for development in the Green Belt, held that the Inspector should have considered whether or not this development would bring about demonstrable harm to the Green Belt. Thus (at that time) development was not automatically unacceptable in the Green Belt; it was a question for the judgment of the decision-maker.

A similar decision was reached in Barnet Meeting Room Trust v SSE (1990) 60 P. & C.R. 137. In that case an Inspector had recommended that the Secretary of State should allow an appeal against the refusal of development in the Green Belt in these terms:

“I conclude that the development would not significantly detract from the character and appearance of the area, nor significantly threaten the integrity of the Metropolitan Green Belt, and that positive benefits would flow from the proposed landscape treatment of a former derelict site.”

The Inspector did recognise that, in a strict sense, the proposal would be unlikely to “preserve or improve the open nature of the area” in terms of the requirements set by para. 9.16 of the Greater London Development Plan. Nonetheless he recommended that on balance, and bearing in mind the established need for the development, the appeal should be allowed.

By this time, PPG2 in its original form had been published, and the Secretary of State’s decision letter, rejecting the Inspector’s recommendation, ended with the words: “The Secretary of State is of the opinion that, on balance, there are not the special circumstances to justify development in a Green Belt. Accordingly he disagrees with the recommendation.”

The Deputy Judge (Sir Frank Layfield QC) found that the Secretary of State had paid no great attention here to the need for consistency of decisions in comparable instances or to the need, when related decisions are cited to him, to provide reasons why those decisions should be regarded as either of no or limited value to the case under consideration. The learned Deputy Judge held that, very importantly in the Green Belt, the general presumption in favour of development applied (at that time) in favour of allowing applications for development as it did in other areas (relying on Cranford Hall Parking).

In that previous case there was a presumption derived from earlier circulars that were still current at that time that inappropriate development would not be permitted within the Green Belt and there were, no doubt, cases where the fact that the proposals were inappropriate and damaging to the interests of Green Belt policy would be self-evident. But the circular pointed out, quite clearly, that the fact it was in Green Belt land did not in itself constitute a clear cut and sound reason for refusing permission. The right approach was a presumption that planning permission would always be allowed which would be overridden where it was shown that the development would cause demonstrable harm to the Green Belt policy. In this regard, no reason or explanation had been given as to why the provisions of Circular 14/85 (which included the general presumption in favour of development) were not considered. Since development in the green belt was a question of fundamental importance, it was for that reason alone that this decision was quashed in the absence of adequate reasoning in that regard.

Those two cases were, of course, decided within a rather different policy context compared with that which obtains at present, and they have no practical application within the current policy regime; but they both serve to show that an alternative policy approach is perfectly workable, and would not involve a ‘free-for-all’ approach to development in the Green Belt. If the principles illustrated by those two cases were to be re-applied now (by means of revised ministerial policy on this issue), there would in future be an objective examination, as there used to be until the late 1980s, of the site’s ‘Green Belt value’, and consideration as to whether its development would cause demonstrable harm to the openness of the Green Belt (which is the primary objective of its designation as such). As I can clearly recall from the early days of my career as a planning lawyer, going back as far as 1979, appeals could be and in practice were allowed in appropriate cases where the site made no material contribution to the Green Belt and/or where its development would not cause any demonstrable harm to the openness of the Green Belt. The present rigid resistance to any development in the Green Belt, save only in the most exceptional circumstances, is unnecessary and undesirable.

© MARTIN H GOODALL

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