Guildford Borough Council v First Secretary Of State

MR JUSTICE RICHARDS: In July 2003 Guildford Borough Council issued an enforcement notice in respect of property known as High Barn Farm Buildings, Effingham, Surrey. The notice, as subsequently varied by the Inspector, alleged a breach of planning control in these terms:

In a decision dated 16th December 2003, an inspector appointed by the First Secretary of State allowed the appeal, quashed the notice and granted planning permission subject to conditions, including a condition that residential use should cease and the mobile home be removed from the land within three years. The Council now applies under section 288 of the 1990 Act to challenge the Inspector's decision.

The relevant facts can be briefly stated. High Barn Farm Buildings comprises some 28 hectares of farmland, with its farm buildings grouped near the road and with further land rented nearby. The farmland lies within the Green Belt. The business is based on a mixed livestock system, involving cattle, sheep, pigs, goats and poultry, together with the provision of livery services. In a passage that I will need to quote more fully in a moment, the Inspector found that the enterprise was planned as a comprehensive business, embracing both agricultural and livery aspects, and that the livery side complemented the agricultural activities and appeared to be operated as an integral part of the farm holding. It was not in issue that Mr Williams had a firm intention and ability to develop the enterprise. The Inspector noted that he had invested heavily in the holding and dismissed concerns as to whether the enterprise had been planned on a sound financial basis.

The Inspector found that there was a functional need for a dwelling for a worker to serve the enterprise, in that the enterprise involved the breeding of a variety of livestock, which meant that for much of the year someone might need to be at hand at any time to ensure that animals were given the necessary care. Moreover, the horses could suffer injury or illness requiring urgent attention. There was also a contributory factor of security, namely the need to protect livestock of all kinds from theft or injury.

Further findings were that there was no alternative accommodation on the holding or nearby that could meet the need for a dwelling and that the need for the dwelling arose in respect of a full-time worker.

The Inspector also went on to find that the mobile home itself was not unduly conspicuous and that there were no compelling objections to it in terms of impact on the openness of the Green Belt or on the rural character of the countryside.

I should now go back to the policy framework within which those and other findings were made and explain how the Inspector reasoned his decision in policy terms.

The Development Plan consists of the Surrey Structure Plan 1994 and the Guildford Borough Local Plan 2003. Most of the relevant policies are sufficiently summarised in paragraph 3 of the Inspector's decision as follows:

I should mention in addition policy R13, to which the Inspector refers later in the decision. That policy provides that:

Having referred in paragraph 3 to the local policies, the Inspector went on in paragraph 4 to consider the relevant part of national guidance:

In relation to PPG2, it is unnecessary to add to what the Inspector said in that passage, save to point out that the presumption against inappropriate development in the Green Belt is set out in paragraph 3.2 and that paragraph 3.4 provides that the construction of new buildings inside the Green Belt is inappropriate unless it is for certain purposes, which include agriculture and forestry.

PPG7 was amended in 2001 to include additional provision that local planning authorities should be supportive of farm diversification schemes for business purposes that are consistent in their scale with their rural location. The amendments are referred to in a departmental news release 2001/0155, dated 21st March 2001.

Paragraph 3.1 of PPG7 points out that the use of land for the purposes of agriculture or forestry does not constitute a development for the purposes of the 1990 Act, and refers to the definition of agriculture in section 336(1) of the 1990 Act, namely horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock and other matters.

Paragraphs 3.4A and 3.4B, which were substituted by the 2001 amendments that I have mentioned, include statements about the importance of encouraging diversification from agricultural into non-agricultural activities.

Paragraph 3.21 states that new house building and other new development in the open countryside should be strictly controlled, but refers to advice on the special considerations which may arise in relation to agricultural and forestry dwellings. That advice is contained in Annex I, which was not the subject of any material amendment in 2001.

Annex I states in paragraph I1 that one of the few circumstances in which isolated residential development in the countryside may be justified is when accommodation is required to enable farm or forestry workers to live at or in the immediate vicinity of their place of work. It acknowledges in paragraph I2 that there will be some cases in which the demands of the farming or forestry work make it essential for people engaged in the work to live at or very close to the site of their work.

The annex lays down criteria for both permanent and temporary agricultural dwellings and, in particular, sets out in paragraph I6 a functional test to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times, as where animals or agricultural processes require essential care at short notice or the need exists to deal quickly with emergencies. Paragraph I8 refers also to the protection of livestock from theft or injury by intruders.

I think it unnecessary, however, to set out any further detail of the functional test or to deal with the financial test, which is also included in the annex.

Having referred to the relevant policy framework, the Inspector identified at paragraph 5 of the decision two main issues: first, whether the mobile home fell in the category of appropriate development for the Green Belt, and, secondly, if it did, what was the impact on the openness of the Green Belt or on the appearance of the area.

The critical passage in his conclusions which governs the rest of the reasoning comes at paragraph 7:

That was the basis upon which he went on to deal with the tests in PPG7, in particular Annex I, and in the corresponding Local Plan policy RE12.

Looking at the enterprise as a whole, including the livery activities, he made the findings to which I have already referred about financial viability and so forth and about the functional need for a dwelling in respect of a full-time worker. From all of that he concluded at paragraph 14 that the mobile home fitted into the category of appropriate development in the Green Belt.

On the second main issue, the actual impact of the mobile home, I have already indicated that he could see no compelling objections to it in terms of impact on the openness of the Green Belt or on the rural character of the countryside. Thus, he concluded that the mobile home accorded with relevant local and national planning policies and that planning permission should be granted.

Mr Reed, on behalf of the Council, has presented succinct and clear submissions in which he puts the challenge to the Inspector's decision on two bases.

He submits, first, that the Inspector misinterpreted PPG7, and in particular Annex I, by interpreting the functional need test as one that was capable of being met by reference to non-agricultural uses, here the livery side of the business. The same criticism is made of the approach to Local Plan policy RE12.

The second main line of argument is that the Inspector misinterpreted PPG2 in concluding that the mobile home was appropriate development in the Green Belt because it satisfied the functional needs test in PPG7 and policy RE12, and did so by reference again to non-agricultural uses.

Although the challenge is therefore two-fold, first looking at PPG7 and secondly at PPG2, it will be seen that the same essential point underlies both, namely the inclusion of non-agricultural uses in the Inspector's analysis.

As to the first point, what Mr Reed submits is that the Inspector, in asking himself whether the development was justified within the terms of Annex I of PPG7, took into account the livery services, as is apparent from various passages of the decision letter. That, it is said, was not an approach to Annex I that was reasonably open to him. The wording of PPG7, including Annex I, does not permit an interpretation that takes account of matters other than agricultural uses, even if they are forms of diversification of the farming business. Moreover, it is said that the reasons given by the Inspector were not good reasons for adopting the approach he did.

As regards the wording of the relevant policies, Mr Reed refers, in particular, to the fact that paragraph 3.21 of PPG7, which I have already mentioned, states that the advice given in Annex I relates to "agricultural and forestry dwellings". Paragraph 3.1 shows the particular meaning given to agriculture both in PPG7 and in the planning legislation more generally. Annex I itself is plainly related specifically to agricultural and forestry dwellings, as appears from its heading and from various paragraphs within it, including the functional test in paragraph I6 and other paragraphs. Equally, policy RE12 applies in its terms only to agriculture.

Accordingly, it is not permissible, submits Mr Reed, to justify a dwelling within the terms of Annex I of PPG7 or of policy RE12 by reference to any non-agricultural uses.

The reasons given by the Inspector for adopting the course he did appear in paragraph 7 of the decision and consist, essentially, of the encouragement given by recent Government policy to support for diversification of farm businesses and, secondly, a reference to Local Plan policy R13.

The second point cannot assist because policy R13 does not purport to affect the interpretation of policy RE12. As to the change in policy climate and the 2001 news release, Mr Reed acknowledges that the Minister said at that time that a pragmatic approach was required and that amendments were made to PPG7 to encourage local planning authorities to act positively by way of supporting diversification. He points out, however, that no part of Annex I was amended at that time, nor indeed was any material change made to Annex F, which deals with developments relating to horses. Accordingly, there is no warrant for relying on the 2001 amendments as in some way justifying a different interpretation of the provisions that were applied by the Inspector in this case. The Inspector ought to have approached the matter by excluding from consideration the livery activities when considering Annex I. He should have asked whether the functional test was met by the purely agricultural activity. If it was not, the special justification under PPG7 for agricultural housing did not apply and the proposal was contrary to PPG7, and indeed by parity of reasoning to policy RE12. It would have been necessary for the Inspector in those circumstances to analyse the matter in a very different way if he was to consider whether the dwelling was nonetheless acceptable insofar as it related to the livery activities.

On the second main line of argument concerning PPG2, Mr Reed submits that the Inspector's reasoning was simply that since the development was justified by reference to Annex I of PPG7, it was appropriate development within the Green Belt, and therefore the same error of approach infected consideration of PPG2 as it did consideration of PPG7.

There is, submits Mr Reed, even less justification for such an approach in relation to PPG2 because it is clear that the 2001 amendments did not relate to PPG2. Paragraph 4.11 of PPG7 says in terms that the policy set out in PPG2 is not modified by PPG7.

In seeking to meet those submissions, Mr Strachan for the Secretary of State, reminds me, first, of the correct legal approach where the issue is one of interpretation of policy.

It was held in R v Derbyshire County Council ex parte Woods [1997] JPL 958, and in a number of subsequent cases, that interpretation of policy is a matter for the decision maker, in this case the Inspector. If, in all the circumstances, the wording of the relevant policy is properly capable of more than one meaning and the decision maker adopts and applies a meaning which it is capable as a matter of law of bearing, then the decision maker will not have gone wrong in law. It is only if the decision maker adopts an interpretation of policy that is not reasonably open to him that he errs in law. Moreover, as was emphasised by Brooke LJ at page 968 of the judgment in ex parte Woods, it must be remembered that planning policy guidance documents are not a set of rules written by lawyers for lawyers.

The basic principles as set out in ex parte Woods, and later authority, are not in dispute. Mr Strachan submits, however, that the approach of the Council in this case is in danger of treating the relevant policy documents as if they were statutes and that it fails to accord to the decision maker the degree of judgment or discretion that is open to him in matters of interpretation of policy.

Mr Strachan has also drawn my attention to an earlier decision letter, not involving this property or Mr Williams, but involving a mobile home in the area of the Council, and also a development relating to equestrian activities. In that earlier decision, dated 14th May 2003, relating to Shortlands Farm, Guildford Road, Ash, the Inspector concluded that the proposal represented inappropriate development in the Green Belt, but went on to state that at the hearing the council (the same council as in the present case) accepted that if the requirements of Local Plan policy RE12 and Annex I of PPG7 relating to temporary dwellings were satisfied, then there would be very special circumstances that would overcome the presumption against the development. The Inspector continued:

The earlier decision is certainly of some interest. However, it should be noted that the detailed analysis was different from that adopted by the Inspector in the present case, and although the stance of the Council in the present case is perhaps a little surprising given the stance it adopted in that earlier case, that does not, in my judgment, help the Secretary of State. In particular, I reject the submission that the Council's approach in the earlier case can be relied upon as showing that the interpretation adopted by the Inspector in the present case was one reasonably open to him. Because the decision was reasoned in a different way, I do not think that one can deal with the matter as Mr Strachan suggested one could. The most that can be said about the earlier decision is that it indicates that even if one adopts a stricter approach to the interpretation of the relevant policies than was adopted by the Inspector in this case, it may be possible to apply analogous reasoning to reach a similar conclusion.

In any event, Mr Strachan submits that, so far as the present case is concerned, the crucial finding by the Inspector was that this was a single enterprise consisting of both agricultural and livery activities. That takes the case out of the ordinary. It can be contrasted, for example, with a case where there is an equestrian centre without any agricultural activities. The question whether a dwelling should be permitted for the purposes of the centre would not be answered directly by reference to Annex I of PPG7, though the reasoning might be analogous.

The crucial finding by the Inspector is one that, in Mr Strachan's submission, is ignored by the Council's challenge. Where one has an agricultural business with an integral though non-agricultural element, an inspector is entitled to treat the whole as agriculture for the purposes of PPG7. Alternatively, even if the situation does not strictly fall within PPG7, the considerations are so similar that the same, or virtually the same, process of reasoning can be adopted pragmatically so as to reach the same result, as in essence was done in the previous decision to which I have referred.

As to PPG2, again the Inspector adopted, and was reasonably entitled to adopt, the approach that the relevant use was agriculture given his finding as to the integral nature of the business here in issue.

I am not persuaded that the Inspector in this case adopted an interpretation of the policies that was not reasonably open to him or that he otherwise erred in his approach to the issues.

In relation to PPG7 and Local Plan policy RE12, he clearly understood that the provisions to be applied related to agriculture and to accommodation for agricultural workers. So too in relation to PPG2, he understood that under the provisions he was applying a dwelling would be appropriate development in the Green Belt if it was for the purposes of agriculture. He did consider that the development might be capable of justification by reference to other provisions, as appears from his reference to that part of Structure Plan policy PE12 that refers to other uses appropriate to a rural area, but he reasoned the actual decision on the basis of the provisions relating to agriculture, and his reasoning must stand or fall on that basis.

I also think it clear that the Inspector accepted that a livery business is not itself an agricultural use and therefore could not, by itself, come within the scope of the provisions relating to agriculture. That seems to me to be apparent from the early part of paragraph 7 of the decision. But the particular situation with which the Inspector was dealing was not that of a separate livery business. On the facts as he found them, the livery side complemented the agricultural side and was an integral part of the farm holding. This was a single enterprise, a single business which plainly had very substantial purely agricultural elements, the breeding of a variety of livestock, as well as the livery side. The livery side was operated as part of a farming system. All those were findings of fact by the Inspector that could not be challenged.

In those circumstances, it is readily understandable why the Inspector thought it right to look at the enterprise as a whole when examining the application of the relevant policies. It is equally understandable why he considered that the policy provisions relating to agriculture and to accommodation for agricultural workers could properly be regarded as applicable.

The policy developments in 2001 to which he referred underline the policy support given to farm diversification. It is true that diversified farm businesses do not themselves necessarily come within the scope of agriculture, and that the policies applied by the Inspector relate to agriculture, rather than to businesses pursued through farm diversification. But it seems to me that the policy climate does support the view taken by the Inspector that in a situation of the kind confronting him, that is of an integral mixed business with livery as well as agricultural activities, the policy provisions relating to agriculture could properly be applied. The Inspector referred to this as a pragmatic approach. The question for me is whether it was a reasonable interpretation by him of the relevant policies. In my judgment, it was.

Indeed, it seems to me that the approach urged on the court by Mr Reed, which would require chopping up the integral business for the purpose of determining whether the relevant policies applied, would be more artificial and unsatisfactory than the approach adopted by the Inspector. For example, one of the questions under Annex I of PPG7 is whether the mobile home is required for a full-time farm worker. In this case, on the approach put forward by Mr Reed, it would be necessary to allocate a worker's work between agricultural and livery activities, and if only, say, half his time would be spent on purely agricultural activities, the application would fail the test in Annex I, which refers to the need for a full-time worker. It would fail even though the other half of the worker's time would be spent on the livery activities that form part and parcel of the same farm business. It seems to me to have been reasonable for the Inspector to adopt an interpretation of the policies which avoided consequences of that kind.

My finding as to the reasonableness of the interpretation adopted disposes of the claim. It means that the Inspector was not guilty of the alleged misinterpretation of any of the relevant policies. In each case he was entitled to treat this situation as falling within the policies relating to agriculture and to ask himself whether the relevant policy conditions, such as the functional test under Annex I, were satisfied. He reasonably concluded that they were. The decision was therefore lawful.

An alternative question raised in submissions concerned the exercise of discretion had I concluded that the Council was correct on the question of interpretation of the policies.

It does seem to me to be inevitable that if the Inspector had had to approach the matter on the basis that the relevant policies applied only to truly agricultural activities, he would nonetheless have reached the same conclusion. True it is that he would have had to reason his decision in a materially different way, especially as, on this hypothesis, the development would have been contrary to PPG7 and it would have been necessary to find other policies or other countervailing considerations to justify the development. There are very strong pointers in the decision that the Inspector would, on that basis, have reached the same conclusion, given his views on the need for the development and on the absence of compelling objections to it in terms of its impact on the Green Belt and countryside, as well as his brief reference to Structure Plan policy PE2. It is not, however, necessary to examine these issues or the submissions that I heard on them in any greater detail having regard to my primary view that the decision is, in any event, lawful.

For the reasons I have given, the claim is dismissed.

MR STRACHAN: My Lord, I am grateful. I would ask for an order in those terms. I also would ask for an order that the claimant pay the first defendant's costs. I would ask your Lordship to assess those summarily, if the principle is accepted. My Lord, there should be a --

MR JUSTICE RICHARDS: I have not seen a schedule.

MR STRACHAN: I apologise that it has not reached your Lordship. Could I hand my schedule up. I anticipate from discussions I have already had that the sum is not in dispute.

MR JUSTICE RICHARDS: I had better look at it all the same.

MR STRACHAN: Absolutely, my Lord. The total sum is in the sum of £3,310. I would ask your Lordship to make an order in those terms

MR JUSTICE RICHARDS: Thank you very much.

MR REED: My Lord, we have no comments on that. We are grateful to your Lordship.

MR JUSTICE RICHARDS: It seems to me that the claim for costs is irresistible and that the sum is reasonable. I will therefore order the claimant to pay the Secretary of State's costs, summarily assessed in the sum of £3,310.

I am very grateful to both counsel for their assistance.