Tuesday, 21 October 2014
Agricultural dwellings - the operational need test
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  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