Shortt & Anor v Secretary of State for Communities And Local Government & Anor

This appeal concerns the meaning of “dependants” in an agricultural occupancy condition attached to a planning permission granted in 1975 in respect of a dwelling at Buckland Manor Farm, Buckland, Broadway, Worcestershire. The condition in question is in these terms:

“The occupation of the dwelling shall be limited to persons employed or last employed solely or mainly and locally in agriculture as defined by Section 290(1) of the Town and Country Planning Act, 1971, or in forestry and the dependants (which shall be taken to include a widow or widower) of such persons.”

The appellants, Mr and Mrs Shortt, bought the dwelling and the related holding in 1994 and have occupied the dwelling since then, together with their two children (born in 1991 and 1993 respectively). The major part of the land originally comprised within the holding had been sold off in 1976, but the appellants acquired some additional land soon after their purchase of the holding, with the result that the holding comprised in total some 22 hectares of agricultural land of variable quality. The land has been farmed by Mrs Shortt. It is not in dispute that she herself satisfies the condition as a person employed mainly and locally in agriculture. But the farming business has operated at a substantial loss and has not contributed to the financial support of Mr Shortt or the children. Mr Shortt himself is a successful businessman and it is his income that has provided financial support for the family.

On that basis the appellants contend that Mr Shortt and the children are not “dependants” of Mrs Shortt within the meaning of the condition and that their occupation of the dwelling has been at all material times in breach of the condition. If correct, this has the consequence that they are immune from enforcement action pursuant to section 171B(3) of the Town and Country Planning Act 1990 (“the 1990 Act”) and are entitled to a certificate pursuant to section 191(2) of the 1990 Act that the existing use of the dwelling is lawful. It is their application for such a certificate that has given rise to the present proceedings.

The local planning authority, Tewkesbury Borough Council, failed to give notice of its decision on their application within the time laid down. They appealed to the Secretary of State against the failure to give notice. The inspector appointed by the Secretary of State to determine the appeal, Mr Paul Dignan MSc PhD, took a broad view of the meaning of “dependants” in the condition and dismissed the appeal, holding that occupation by Mr Shortt and the children had not been in breach of the condition. A challenge under section 288 of the 1990 Act to the inspector’s decision was dismissed in the Planning Court by Hickinbottom J, who took a similar view of the construction and effect of the condition. An appeal is now brought to this court against Hickinbottom J’s order, with permission granted by the judge himself.

It is convenient to start with the decision of the House of Lords in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 because that decision forms the backdrop for the argument in this appeal. The case concerned a grant of planning permission subject to the following agricultural occupancy condition:

“The occupation of the houses shall be limited to persons whose employment or latest employment is or was employment in agriculture as defined by section 119(1) of the Town and Country Planning Act, 1947, or in forestry or in any industry mainly dependent upon agriculture and including also the dependants of such persons as aforesaid.”

The language of the condition echoed that of section 115(2) of the Housing Act 1936, which defined “agricultural population” as “persons whose employment or latest employment is or was employment in agriculture or in an industry mainly dependent upon agriculture, and includes also the dependants of such persons as aforesaid”.

The issues decided by the House of Lords related to the validity of the condition and included arguments that the condition (i) was ultra vires the statutory power to grant planning permission subject to conditions (then section 14(1) of the Town and Country Planning Act 1947, now section 70(1)(a) of the 1990 Act) and/or (ii) was void for uncertainty. It was in rejecting the uncertainty argument that Lord Keith of Avonholm made relevant observations about the meaning of the condition. He said:

“… Reading the condition as a whole I do not find any insuperable difficulty in arriving at a reasonable and clear idea of the content of the condition. It refers in the first place to ‘the occupation of the houses’, which I read as being confined to occupation by persons having certain defined qualifications and to the dependants of these persons. There may be a certain ambiguity here, but your Lordships are not concerned here with resolving ambiguities or placing a considered and final meaning on the condition. Speaking for myself I would not read the occupation as covering an independent occupation by dependants of the persons mentioned, but as including occupation by such dependants while living in family with such persons and occupying the houses along with them. Death, or removal from the houses, of the persons defined would terminate the occupation of the dependants. Nor can I see any difficulty in construing ‘dependants’, when brought within the confines of a house, as meaning persons living in family with the person defined and dependent on him in whole or part for their subsistence and support …” (page 671, emphasis added).

The italicised words have been picked up in later guidance, as referred to below, but it is clear both from the context and from the quoted passage as a whole that they were not intended to be a definitive interpretation of “dependants” in the condition there under consideration. Nor were they endorsed by the other members of the Appellate Committee. They are not binding even in relation to the interpretation of a condition in identical terms to that under consideration in Fawcett Properties, let alone in relation to a condition in different terms (and the express inclusion of “a widow or widower” in the present condition is an obvious difference).

The only other member of the Judicial Committee to express a specific view about the meaning of the condition in Fawcett Properties was Lord Denning. In the context of the ultra vires argument, he summarised the relevant principles relating to the imposition of planning conditions, including that they must fairly and reasonably relate to the permitted development. He went on to say:

“The condition, properly construed with the reason, means, I think, that the occupation of the cottages must be limited to persons who are employed in agriculture in the locality or in a local industry mainly dependent upon agriculture in the locality. The word ‘occupation’ is used to denote the head of the household. The word ‘latest’ to show that he may stay on in the cottages after his retirement. The word ‘dependants’ to show that he may have with him his wife and family and anyone else dependent on him. So construed it seems to me that the condition fairly and reasonably relates to the permitted development. Its effect is to ensure that the cottages will be occupied by persons who will help to maintain the normal life and character of this part of the green belt and not by outsiders to use as a dormitory. The cottages are for farm-workers or for men who work at the smith shoeing horses, at the mill grinding the corn, or at the saw mills cutting up wood; or in modern times at the milk depot bottling the milk or at the repair shop mending the tractors; and so forth. They are not for people who go up and down to London every day” (page 680, emphasis added).

Since reference has been made in the course of argument to national policy guidance in force at various times, I will refer to that guidance here, whilst noting that much of it post-dated the grant of planning permission to which the condition in this case was attached.

Circular 5/68 contained the national guidance on the use of conditions in planning permissions which was in force at the time when the relevant permission was granted. It explained the circumstances in which an agricultural occupancy condition might be imposed:

“26.

In exceptional cases it may be necessary to impose an occupancy condition in the case of a house required for an agricultural worker, or to enable a smallholding to be better managed. Where such a house is proposed for a site where a house would not normally be permitted apart from the agricultural reasons, for example, in a green belt, it may be a material planning consideration that the house shall meet that express need. If it is proposed to grant permission as an exception to the general planning policy for the area it will be essential to ensure that the house will be available to meet the need for which the exception was made. A condition may therefore be imposed requiring that the house be occupied by a person engaged in agriculture or forestry (paragraph 6 of the Appendix) ….”

The model condition in paragraph 6 of the Appendix provided for occupation of the dwelling to be limited to a person employed locally in agriculture, etc., “or a dependant of such a person residing with him (but including a widow or widower of such a person)”. The guidance said nothing about the meaning of “dependant”.

Later guidance, in Circular 11/95, included a model condition with slightly different wording, that occupation should 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 accompanying text stated that the model condition would ensure that the dwelling was kept available to meet the needs of other farm or forestry businesses in the locality if it was no longer needed by the original business, thus avoiding a proliferation of dwellings in the open countryside. It also stated that local planning authorities would wish to take care to frame agricultural occupancy conditions in such a way as to ensure that their purpose was clear: “In particular, they will wish to ensure that the condition does not have the effect of preventing occupation by the dependants of the person defined (the agricultural occupant) ….”. Reference was made to endnote 5, which read:

“‘Dependants’ means persons living in family with the person defined and dependent on him (or her) in whole or in part for their subsistence and support (Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636 at page 671).”

Thus the guidance adopted what Lord Keith had said in Fawcett Properties about the meaning of the word.

The need for a strict approach towards the grant of planning permission for agricultural and forestry dwellings was set out in Planning Policy Guidance 7 (“PPG7”), which we were shown in a revised edition issued in February 1997. The guidance in Annex I to PP7 included the following:

“I.3. Despite planning policies that impose strict controls on new residential development in the open countryside, and the substantial reduction in agricultural employment, the demand for such development remains high. Some of this demand may be justified by the genuine needs of farming and forestry, but much is speculative and stems from applicants seeking to exploit the physical or financial advantages of a new house in the countryside. It is, therefore, essential that applications for planning permission for new agricultural or forestry dwellings are scrutinised thoroughly with the aim of detecting attempts to abuse the concession that the planning system makes for such dwellings.

…

I.5. New permanent dwellings should only be allowed to support existing agricultural activities on well-established agricultural units, providing:

…

(c)

the unit and the agricultural activity concerned have been established for at least three years, have been profitable for at least one of them, are currently financially sound, and have a clear prospect of remaining so (see paragraph I10);

…

I.10. New permanent accommodation cannot be justified on agricultural grounds unless the farming enterprise is economically viable. A financial test is necessary for this purpose, and to provide evidence of the size of dwelling which the unit can sustain.”

I have already summarised the essential factual framework within which the question of construction falls to be resolved. A fuller account of the facts is to be found at paragraphs 2-8 of the judgment below.

I should, however, mention that in support of their application for a certificate of lawful use, the appellants submitted a planning consultant’s report which included information concerning the amount of work undertaken by Mrs Shortt on the agricultural unit and the trading position of the unit. As to the former, the report stated that even at the peak, in 2006, the time expended by Mrs Shortt on managing the farm equated to less than 20 per cent of a full time equivalent worker, so that “[a]t best the farm is part-time; in reality it is effectively a hobby farm”. As to the trading position, in the years 2002 to 2007 there was a trading loss of between about £13,000 and £40,000 each year save 2003, when a profit was made because Mrs Shortt undertook some short term consultancy work unrelated to the agricultural activity on the farm which was nevertheless included in the farm accounts. One of the conclusions of the report was that “[t]here has been no potential within the last ten years for Buckland Manor Farm to produce the revenue to maintain any dependants that Mrs Shortt may have had during this time”.

Before the inspector it was argued on behalf of the appellants, in reliance on what Lord Keith had said in Fawcett Properties and the “definition” in Circular 11/95, that the agricultural occupancy condition was breached if any of the occupiers of the dwelling did not depend, in part at least, on income generated by Mrs Shortt’s agricultural work. The inspector rejected the argument, stating:

“In my view this is 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. Further, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financial[ly] 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. I consider 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 application before him, Hickinbottom J 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. He said that the researches of counsel demonstrated that there is no single definition of “dependant” applicable in all circumstances and that “context is everything”. He referred to the statutory provisions from which the wording in the condition was originally derived, and to the fact, as he put it, that in Fawcett Properties the House of Lords “were called upon to construe a planning condition which simply adopted this statutory wording”. He summarised the submission of Mr Goatley, counsel then appearing for the appellants, that the phrase “subsistence and support” in Lord Keith’s formulation in Fawcett Properties was used conjunctively to mean “both subsistence and support” and that subsistence could only be provided in money or money’s worth, so that it was implicit that the person upon whom the dependant depends must provide for that person in money or money’s worth. Counsel also relied on a number of planning decisions to which I will refer later in this judgment.

The judge described counsel’s submissions as having very considerable force but said that, although initially inclined to accept them, he was unable to do so. His reasons included the view that Fawcett Properties was itself equivocal as to whether “dependant” in the statutory context from which the condition derived necessarily required an element of financial dependency; and that the planning decisions relied on by counsel were not entirely in his favour. He continued:

“30.

Therefore, 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.

31.

However, in any event, although no doubt the wording of the Planning Condition derived from the statutory wording in the Housing Acts, I am not here construing a statutory provision, nor (as in Fawcett Properties) a condition taken ipsissimis verbis from a statutory provision. The Planning Condition does 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’ (emphasis added). I accept that the italicised words are a deeming provision – but ‘dependants’ here appears to be 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 seems to me 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 my view it cannot 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.

32.

Therefore, whilst I do not find the question easy – and accept that this analysis is not without its difficulties (for example, because it does not answer the question of the degree of dependency, if any, of a spouse prior to an agricultural worker’s death that would enable him or her to fall within the deeming provision) – the words as used in the Planning Condition, looked at as a whole, appear to me 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.”

The appellants were represented on the appeal to this court by Mr Kingston QC, who did not appear below. The case he developed at the hearing differed in certain respects from that advanced below and even from the case in Mr Kingston’s written skeleton argument. He argued as follows. A basic requirement for the imposition of a planning condition, as set out in national guidance, is that the condition is necessary (see, for example, paragraph 6 of Circular 5/68 and paragraph 14 of Circular 11/95). Agricultural occupancy conditions are common, because the planning system has leant against sporadic development in the countryside but recognises that there may be a necessity for a dwelling for someone employed in or in relation to agriculture. Agricultural dwellings tend to be in pleasant rural areas and can be highly desirable and an object of attention for speculators seeking to avoid the condition. The possibility of abuse has been recognised by the Secretary of State, as shown by the passages from Annex I to PPG7 quoted above. The approach adopted has been to link the grant of permission (with associated agricultural occupancy condition) with a requirement that the related agricultural enterprise is economically viable. That financial requirement runs through into who may be regarded as a “dependant”.

Before developing that last point, Mr Kingston made some uncontroversial general submissions about the construction of planning conditions. They should not be construed narrowly or strictly or contra proferentem the local planning authority, but should be construed in a benevolent manner: see, for example, Carter Commercial Developments Ltd (in Administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1200 (Admin), [2003] JPL 35, at paragraph 49. They should be construed not in the abstract but in the context in which they are imposed: ibid., paragraphs 46 and 60. The general rules on the construction of planning permissions, as summarised in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 at pages 19-20, apply to the construction of conditions. Because context is critical, dictionary definitions of words in common use are of no help: Northavon District Council v Secretary of State for the Environment [1993] JPL761 at 765. Mr Kingston indicated that since it is potentially misleading to adopt the meaning of words used in a different context, he was not going to rely on authorities in other contexts.

That brings me to Mr Kingston’s detailed submissions on the relevant context here. He submitted that the condition in this case must have been imposed as meeting the test of necessity, that is to say that the local planning authority must have been satisfied of the need for a dwelling for occupation by a person employed in agriculture. The employment in question must have been intended to be one which generated an income: that is why historically the Secretary of State has insisted that the employment should be related to a viable agricultural activity. The provision allowing occupation by dependants arises in that context and the dependency should be construed as one which, to some material extent at least, stems from the agricultural activity and the income it produces: the key is agricultural employment which produces a livelihood which produces income and supports dependants. Any other approach defeats the purpose of the condition and is open to abuse. Hobby farming is not a necessity but a lifestyle choice, and allowing hobby farmers to occupy dwellings subject to such conditions will not maintain the supply of dwellings needed for those who make their living out of agriculture. The clear intention is that dwellings subject to such conditions should be kept available for those deriving subsistence for themselves and their families from agriculture. When Lord Keith in Fawcett Properties construed “dependants” as meaning persons living in a family with the person defined “and dependent on him in whole or in part for their subsistence and support”, he was referring to a financial dependency related to the agricultural employment. That has been the approach consistently applied over time by the Secretary of State and his or her inspectors. The position contended for by the Secretary of State in the present case runs counter to it, defeats the objective of the condition and will lead to a reduction in the stock of dwellings in the countryside available to those in agricultural employment.

Mr Kingston submitted finally that the approach taken by Hickinbottom J in paragraph 31 of his judgment, relying on the deeming provision that dependants shall be taken to include a widow or widower of the persons defined, was mistaken. The deeming position is no more than the human factor at work in planning control. It should not be allowed to govern the construction of the condition: that would be the tail wagging the dog.

I am not persuaded by Mr Kingston’s submissions. In my judgment, the conclusion reached by Hickinbottom J was the correct one. My reasons, which substantially reflect the submissions of Mr Moffett on behalf of the Secretary of State, are as follows.

Little assistance is to be gained from Fawcett Properties. As I have already observed, what Lord Keith said about the meaning of “dependants” in the condition there in issue was not intended to be a definitive interpretation, related to a differently worded condition from that in the present case, and is in any event not binding. I accept that in referring to dependency on the agricultural worker for “subsistence and support”, Lord Keith may well have had in mind a degree of financial dependency, but the point does not appear to have been the subject of argument (it had been conceded by counsel for the local planning authority that “dependency” implied financial dependence: see [1961] AC at page 651). I note that Lord Keith also referred to “living in family” with the agricultural worker, a point which achieves greater emphasis in Lord Denning’s formulation (“The word ‘dependants’ to show that he may have with him his wife and family and anyone else dependent on him”). Overall, I do not think that Fawcett Properties provides any significant support for the contention that “dependants” in a condition of this kind means persons who are financially dependent on the agricultural worker.

As a matter of ordinary language, “dependants” is capable of referring to relationships involving a non-financial dependency as well as those involving a financial dependency. Mr Moffett cited the example of a baby who would be said to be dependent on its nursing mother even if the mother contributed nothing to the household expenses; or a disabled or elderly person who was cared for by a relative and would be said to be dependent on that relative even if the person cared for was independently wealthy and the relative contributed nothing financially. Within a family home, spouses can sensibly be described as dependent on each other, and children as dependent on both parents, irrespective of the respective contribution of each spouse/parent to the family finances: emotional support and care can be just as important factors as financial considerations.

On the face of it, the condition in this case contains no requirement as to financial dependency on the agricultural worker (something that could easily have been written into it had it been intended) but is equally apt to cover a non-financial dependency such as exists within a family relationship. That a family relationship is in contemplation is shown by the express inclusion of a widow or widower of the agricultural worker within the scope of “dependants”. The judge based himself on the inclusion of a widow/widower in reasoning as he did in paragraph 31 of his judgment (quoted above) that “dependants” in the condition must have been intended to include a husband or wife without financial dependency. I agree with that reasoning and would reject Mr Kingston’s dismissal of it as the tail wagging the dog. The judge’s reasoning was a sufficient basis for the conclusion he reached but I prefer to regard it as additional support for a conclusion that I would reach on the broader grounds considered here.

In my view, the underlying policy also tells in favour of interpreting “dependants” in the condition as encompassing a spouse and children living as a family with the agricultural worker, irrespective of the degree of financial contribution that the agricultural worker makes to family finances. The purpose of granting planning permission subject to an agricultural occupancy condition for dwellings in the countryside is to provide accommodation that is needed for an agricultural worker. It is reasonably to be expected, however, that an agricultural worker with a family will want to live in such accommodation with his or her family; and the obvious purpose of the inclusion of dependants within the condition is to permit them to do just that. There is no obvious reason why this condition should be read as applying only where the agricultural worker provides financial support to the family members living with him or her. Indeed, it would be very surprising if the intention were to permit an agricultural worker to have family members living with him or her only so long as the agricultural business was profitable, or to require family finances to be organised in such a way as to channel profits from the agricultural business into meeting the family’s ordinary living expenses rather than, for example, allowing them to be reinvested in the agricultural business while relying on the spouse’s income to meet the living expenses.

Mr Kingston’s attempt to tie the concept of dependency to finances derived from the agricultural enterprise seemed to me to be altogether too strained. I accept that the guidance in PPG7 made clear that before granting planning permission for a new dwelling in the countryside on the basis of need for accommodation for an agricultural worker, a local planning authority should scrutinise the application thoroughly, with the possibility of abuse in mind, and should be satisfied as to the economic viability of the agricultural enterprise in question. Whether or not guidance of that kind existed when the planning permission in this case was granted, it can be assumed that the local planning authority satisfied itself of the need for a dwelling before granting such permission. None of that, however, supports the reasoning that Mr Kingston sought to erect upon it. The agricultural occupancy condition imposed by the local planning authority did not tie occupation to a particular agricultural enterprise, let alone did it impose a requirement as to the continuing profitability of the business in which the agricultural worker was employed. It provided simply that occupation was to be limited to “persons employed or last employed solely or mainly and locally in agriculture … or in forestry” and to the dependants of such persons. It was not in dispute below that Mrs Shortt herself satisfied the condition as a person so employed in agriculture, notwithstanding that her farming business operated at a substantial loss and was described in her consultant’s report as “effectively a hobby farm”. Some of Mr Kingston’s submissions were directed to the undesirability of allowing hobby farmers to occupy agricultural dwellings; but since there was no issue about that before the inspector or the judge, it is not a target open to Mr Kingston on the appeal to this court. And once it is accepted that a person can meet the condition as a person employed in agriculture even without making any money from the business, the argument that “dependants” in this context connotes a financial dependency related to the agricultural employment does not get off the ground.

Nor do I accept Mr Kingston’s submission that the Secretary of State and his or her inspectors have consistently applied the approach of financial dependency for which he contends in this case. We were taken to a decision by the Secretary of State dated 12 August 1994 in relation to land at Sevenoaks, Hall Road, Martham Norfolk; a decision of the Secretary of State dated 21 May 1996 in relation to land at Beenham Stocks Vineyard, Beenham Hill, Reading; and an inspector’s decision dated 9 December 2009 in relation to land at Tafarn Bach Farm, Trerhingyll, Cowbridge, Vale of Glamorgan. I do not think it helpful to refer to any of those decisions in detail. The inspector’s decision did proceed on the basis that it was necessary to show a financial dependency, but it is not known whether the point was argued or was the subject of a concession. I do not read either of the Secretary of State’s decisions as proceeding on that basis. Indeed, part of the reasoning in the Secretary of State’s decision of 21 May 1996 was that “an agricultural occupancy condition, however worded, cannot reasonably be interpreted so as to prevent occupation of the dwelling by the spouse of an agricultural worker, living as part of the same household, simply on the basis of a greater income from non-agricultural employment”. That reasoning, far from supporting the appellants’ case, is in line with the view I take about the meaning of “dependants” in the condition in issue here. But I place no weight on that consideration. I do not think that any real assistance can be derived from the decisions cited to us.

For the reasons given, I consider that Hickinbottom J’s construction of “dependants” in the relevant condition was correct and that he was therefore right to uphold the inspector’s decision.

I would dismiss the appeal.

I agree.

I also agree.