Monday, 28 July 2014

Agricultural occupancy conditions and ‘dependants’

The wording of the model agricultural occupancy condition (No. 45 in Appendix A to Circular 11/95, which remains extant following the cancellation of the remainder of that circular) has been widely used by many LPAs. It reads:

“The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependants”.

The question inevitably arises as to whether there would be a breach of such a condition where a member of the family living with the agricultural worker is not financially dependent on that person. The point was considered by the House of Lords in Fawcett Properties Ltd v Bucks CC [1961] AC 636, and the general impression derived from that judgment was that financial dependence was the qualifying criterion.

However, the question arose again in the case of Shortt v. SSCLG [2014] EWHC 2480 (Admin), in which judgment was given on 22 July. An LDC had been sought from the LPA on the basis of a continuous 10-year breach of the AOC, based on the fact that (a) the person actually working in the locality in agriculture had made a consistent loss in the agricultural enterprise throughout that period and (b) that, in consequence of this, the person’s husband was not financially dependent on her, and so could not be a ‘dependant’ for the purposes of the condition. The LPA failed to determine the LDC application, so the applicant appealed to the Planning Inspectorate under section 195.

The Inspector took what many would consider to have been a very sound commonsense approach to this issue. In his view, the appellant’s contention in reliance on Fawcett was 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, he suggested. Furthermore, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financially 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. The Inspector considered 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.

For the purposes of the High Court application, the judge assumed that Mrs Shortt was an agricultural worker, but made no profit from the farm in any year, and therefore made no financial contribution to the family. This was clear from the evidence of her accounts. After considering various statutory definitions of ‘dependant’ in other legislation, His Lordship observed that, so far as the definition of “dependant” is concerned, context is everything.

Turning to the decision of the House of Lords in Fawcett, in His Lordship’s view that decision was is itself equivocal as to whether “dependant” in the statutory context from which agricultural occupancy conditions derive necessarily requires an element of financial dependency. Various appeal decision had been called in aid by the applicant, but these were not entirely in her favour. For example, in one case (Land at Meadows, Colwell Road, Freshwater, Isle of Wight: Planning Inspectorate Appeal No App/C/96/P2114/643380), the Inspector did not consider that “the condition could be construed as excluding a married couple, one of whom works outside agriculture”, where the agricultural worker appears to have earned nothing from that enterprise. Therefore, His Lordship held, even in the statutory context (or a context in which the precise statutory wording had been adopted), there is no clear authority to the effect that “dependant” necessarily implies financial dependency.

The wording of the condition in the present case differed slightly from the model condition, and this appears to have had a material effect on the judge’s decision. The condition did not simply refer to agricultural workers and their dependants, but agricultural workers and “the dependants (which shall be taken to include a widow or widower) of such persons”. So “dependants” here were deemed to include a widow or widower of an agricultural worker, whether or not, before that worker’s death, the spouse was financially dependent upon him or her. It would strain the construction of the condition too far for it to mean “the dependants (which shall be taken to include a widow or widower who was, prior to the agricultural worker’s death, a financial dependant of that worker)”.

Given that “dependants” may or may not include dependency other than financial dependency depending upon the context of the word, it seemed to His Lordship that, if the term is to include a widow or widower irrespective of earlier financial dependency, looked at objectively, it must have been intended to have included a husband or wife without financial dependency. In his view it could not have been the intention of the condition to prohibit spouses who are not financially dependent upon an agricultural worker from occupying the dwelling during the worker’s life, but allow such spouses to occupy it after the worker’s death.

Therefore, the words as used in the condition, looked at as a whole, appeared to His Lordship to envisage “dependency” in a wider and more open-textured way than one requiring an element of financial dependency, certainly to include a spouse and minor children of the worker who is their wife and mother and who provides them with usual family services and care.

To that extent it could perhaps be argued that this judgment is dependent on its facts, that is to say, on the precise wording of this condition. The judge himself pointed out that he was restricting himself to construing the particular condition in this case. It was unnecessary for him to seek to construe “dependants” in the statutory context, and he declined to do so. No doubt he was unwilling to be seen to be differing from a House of Lords decision, but Fawcett was decided over 50 years ago in a very different social and economic context, and a broader interpretation of “dependants” may now be more appropriate, not least because a narrow interpretation could throw up some undesirable and even nonsensical anomalies in such cases, as the Inspector pointed out.

It remains to be seen how much weight can be placed on Shortt as an authority on this issue, but I suggest that Fawcett, even though it was a House of Lords decision, should no longer be uncritically accepted as authority for the proposition that, in the context of an AOC, the interpretation of “dependant” is necessarily confined to financial dependants. It should reasonably be taken to include those in a family relationship with the agricultural worker living with them, such as spouses and even perhaps adult children, even though those persons are financially independent.


Friday, 18 July 2014

De-CLoG - Ministerial jobs shared out

De-CLoG have now sorted out their ministerial responsibilities between new and existing members of the ministerial team.

Those ministers with specific responsibilities in respect of Town and Country Planning are:

Eric Pickles (Secretary of State) – overall responsibility for planning and housing (and everything else)

Brandon Williams (Minister of State) - responsible for housing, planning and development, Ebbsfleet development, Traveller policy.

Stephen Williams (Parliamentary Under-Secretary) – responsible for localism, decentralisation and community rights, building Regulations and standards, empty homes, climate change and sustainable development

Kris Hopkins (Parliamentary Under-Secretary) - responsible for local government, planning policy and casework in relation to wind farms and solar, community pubs

Penny Mordaunt (Parliamentary Under-Secretary) - responsible for coastal communities, local growth, high streets, town centres and markets, enterprise zones, planning casework (supporting Brandon Lewis, Minister of State for Housing and Planning)

Lord Ahmad (Parliamentary Under-Secretary) - responsible for DCLG business in the House of Lords

I have omitted those ministers whose responsibilities do not include any involvement in planning as such.


Wednesday, 16 July 2014

The new planning minister

I am grateful to Charles Mynors (see comments appended to yesterday’s post) for alerting me to the fact that Brandon Lewis has taken over as planning minister in place of Nick Boles, also adding housing to his brief. He has been promoted within De-CLoG from Parliamentary Under-Secretary of State to Minister of State. His previous role within De-CLoG (since October last year) was as minister responsible for local government, fire and resilience, high streets, town centres and markets, travellers, and community pubs, having originally joined De-CLoG in September 2012. He is MP for Great Yarmouth, and has been in the Commons since 2010.

Lewis is a barrister, and served as a councillor on Brentwood Borough Council for more than 10 years, including 5 years as Leader, so he ought (one hopes) to have some idea of how the planning system works. He and Pickles go back some years together as local politicians in Essex, so this should help them to build a good working relationship.

I have been unable to ascertain any details of Brandon Lewis’s career at the bar, and am not clear whether he actively practised at the bar (and, if so, in what specialisation, if any) before his ministerial appointment in 2012.

Whether Pickles and Lewis (“the Eric & Brandon Show”) will continue the programme of ‘liberalisation’ through further extensions of permitted development remains to be seen, but further PD rights have been promised, so we should perhaps expect some further changes. One gets the impression, however, that the government generally is now changing over to pre-election mode, and that apart from tying up a few loose ends, they are not expecting to embark on any bold new initiatives.

Meanwhile, Penny Mordaunt, the latest recruit to De-CLoG, has been put in charge of the teaspoons (oh, and also coastal communities).


Tuesday, 15 July 2014

Boles moves on

The Planning Minister, Nick Boles, has left De-CLoG to become Minister of State jointly for the Department for Business, Innovation and Skills and the Department for Education. Penny Mordaunt (who?) has been appointed as Parliamentary Under Secretary of State in De-CLoG. I am not sure yet whether she is Boles’ replacement as Planning Minister, or whether there may be a re-arrangement of ministerial responsibilities in the Department. No doubt this will become clear in the next day or so.

There is no news of Uncle Eric, who is apparently staying put. Perhaps he was just too difficult to move. On 12 July, the Daily Mirror speculated that Ian Duncan Smith and Eric Pickles could be among the front bench casualties in the reshuffle. Both are still in post, so it looks as though the Mirror may need a new set of crystal balls.

Meanwhile, Owen Patterson has got the bullet at DEFRA. He turned up in Somerset without his wellies to see the floods, but proved that he was unable to walk on water. His departure has been widely welcomed. Liz Truss has taken over as the Secretary of State at DEFRA. So the next flood disaster, when it happens, will land on her desk.

[UPDATE: Just one minute after I posted this item, Eric Pickles tweeted: Just spoken to the PM I am very honoured to continue as Secretary of State at DCLG. ]

Monday, 14 July 2014

Office to residential – ministers enforce the rules

When Class J was added to Part 3 of the Second Schedule to the GPDO in May 2013, I predicted that some authorities would attempt to negate this change by making Article 4 Directions, but I pointed out that ministers have the power to cancel such directions. Sure enough, several authorities announced their intention to make directions, with the London Borough of Islington being first off the blocks with a blanket Article 4 Direction for its area.

It was a moot point as to whether there would be a confrontation between ministers and recalcitrant local authorities over this issue, and De-CLoG ministers finally made their position clear last week when Nick Boles made a written ministerial statement to the Commons.

He recognised that there may be very local reasons that mean these permitted development rights might not always be appropriate, and that LPAs do have the power to make Article 4 Directions. However, he pointed out that the National Planning Policy Framework provides that Article 4 directions should only be used in limited situations where it is necessary to protect local amenity or the wellbeing of the area. The Government’s planning guidance specifies that there should be particularly strong justification to withdraw permitted development rights where a direction applies to a wide area or where prior approval powers are available to control development.

In an earlier written ministerial statement of 6 February 2014, Boles reported that the London Borough of Islington had issued a blanket Article 4 direction which had the intended effect of removing permitted development rights for the conversion of offices to homes from the entire Borough area. National planning policy and guidance is clear that such expansive Article 4 directions require particularly strong justification, given the clearly stated public policy goal of liberalising the planning rules and helping provide more homes. It was the minister’s view that the Council had not provided this justification and so Islington had been ‘invited’ by ministers to narrow the scope its direction.

However, having considered Islington’s proposal for the Article 4 direction to apply to a reduced area, ministers have determined, in light of the tests set out in national policy and guidance, that it remains unacceptably expansive and unjustified. Taking into account the background of the significant need for new housing in London particularly, ministers have therefore taken steps to cancel Islington’s Article 4 direction in relation to Class J.

Boles made it clear that this revocation is intended to send a clear message that those who seek to oppose these changes to permitted development rights need to justify any Article 4 Directions and their extent. Clearly this is a warning shot across the bows of other LPAs, particularly in Greater London, against making widespread Article 4 Directions in an attempt to frustrate the use of permitted development powers for office to residential conversions. The London Borough of Richmond has announced its intention of making such a direction, but in light of the ministerial cancellation of Islington’s direction, Richmond had better think again. They are clearly not going to get away with a direction which is at all wide-ranging in its geographical scope. At best, an Article 4 Direction might be acceptable in certain core town centre areas, but these are likely to be strictly limited, and De-CLoG ministers can be expected to see to it that they are, if they accept them at all.


Tuesday, 8 July 2014

“Events, dear boy. Events.”

Harold Macmillan never used those precise words, but the best quotations are often misquotes. Anyway, it is events that have conspired to prevent my posting on this blog since 18 June, and as the BBC used to say in the days of steam-driven television - ‘We apologise for this break in transmission. Normal service will be resumed as soon as possible.”


Wednesday, 18 June 2014

Residential conversion of agricultural buildings - ecological considerations

Neil Pearce at Wychavon DC has raised with me a point arising from the conversion of agricultural buildings to residential use under Class MB in Part 3 of the Second Schedule to the GPDO. This relates to the appropriateness of a requirement that certain ecological surveys should be carried out. There are actually two points –

(1) Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB?

(2) Can pre-commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?

Paragraph MB.2 provides that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses),

and it goes on to say that the provisions of paragraph N of Part 3 shall apply in relation to any such application.

As I pointed out in earlier blog posts relating to the changes to the GPDO made in 2013 and 2014, paragraph N provides that the local planning authority must, when determining a prior approval application have regard to the National Planning Policy Framework as if the application were a planning application.

The consensus of opinion seems to be that, notwithstanding paragraph N, the LPA is in fact constrained in its consideration of the prior approval application to the criteria listed in the relevant class in Part 3 (in this case, paragraph MB2). I believe that several appeal decisions have now been issued that confirm this approach.

In the case of Class MB, however, the criteria that the LPA must take into account are rather more wide-ranging than they are under certain other classes. In particular, these criteria include consideration as to whether the location or siting of the building makes it impractical for any other reason (besides the others that are listed) or undesirable for the building to change from agricultural use to residential use. This seems to me potentially to introduce all sorts of other factors that might arguably militate against the residential conversion of the building. Among these, I suggest, could be ecological considerations, including the presence of protected species, such as bats.

I am told that Wychavon has a lot of bats (Stop sniggering at the back there!) and some enthusiastic ecologists. The argument is that, whilst not expressly referred to as one of the prior approval issues for an LPA to consider, ecology (and in particular the conservation of protected species) remains a key factor in the conversion of rural buildings. The ecologists very reasonably point out that the De-CLoG response to consultation on this issue stated that “All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”. Furthermore, Section 40 of the Natural Environment and Rural Communities Act 2006 requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions, an LPA is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010. I am bound to say that this does seem to me to be an entirely reasonable approach, and I really can’t fault the ecologists’ view on this issue.

The ecologists also point out, again quite rightly, that Paragraph N of Part 3 provides that “the local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include —

(a)assessments of impacts or risks;
(b)statements setting out how impacts or risks are to be mitigated; or
(c)details of proposed operational development;

The ecologists believe that the implications for protected species should be considered as “impacts or risks”. Again, I really can’t disagree with that. They also take the point which I referred to earlier that prior approval applications are required to be determined with regard to the requirements of the NPPF. This requires decisions to be taken with regard to protected species. The ecologists therefore feel that the council should require a prior approval application to be accompanied by an appropriate assessment of the potential impact upon protected species and a mitigation strategy, if there are protected species at risk of harm from the development.

This would certainly be done if the LPA was dealing with an application for planning permission, and I am inclined to the view that a similar approach would be appropriate in the case of prior approval applications under Class MB. One might argue that this makes a nonsense of the principle of “permitted development”, but I think this is inherent in the whole prior approval concept that the government has devised. I have previously described it as “planning permission-lite”. It would be a serious mistake for anyone to run away with the idea that the government ever intended a free-for-all for residential developments in the countryside . Some people may find this disappointing, but that’s the way it is.

I mentioned earlier the issue of pre-commencement conditions. The 2014 amendment to Part 3 made it clear that LPAs have the right to impose conditions on prior approvals in the same way, and subject to the same rules and considerations, as in the case of planning permissions. It follows that pre-commencement conditions may be appropriate in some cases, and such conditions might include protection measures for fauna and flora, among other things.

I don’t think Neil was expecting me to come down on the side of the ecologists, but as a lawyer I just have to interpret the law as it stands, irrespective of my personal views as to whether it is ‘right’ or not in a political sense.