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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> J R Cussons & Son (A Firm) v Secretary of State for Communities and Local Government & Anor [2010] EWHC 2463 (Admin) (15 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2463.html Cite as: [2010] EWHC 2463 (Admin), [2011] JPL 404

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT LEEDS

		Leeds Combined Court Centre 1 Oxford Row, Leeds LS1 2BG
		15 October 2010

His Honour Judge Langan QC:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision made on 8 February 2010 by an inspector appointed by the Secretary of State for Communities and Local Government. The applicant, which is a farming partnership, had applied to the North York Moors National Park Authority ('the NPA') for permission for change of use of what was described as an "existing office/washroom/store" ('the appeal building') to a dwelling for the accommodation of an agricultural worker. The applicant keeps a herd of cows on the relevant land, and the case of the applicant is that it needs to use the appeal building as a residence for a stockman, who would be on hand at all hours during the calving season. The NPA refused the application, the applicant appealed, and by the decision which is challenged in these proceedings the inspector dismissed the appeal.
2. There are two main strands to the question which I have to consider. The first related to the interface between the facts of the case and the relevant policy document, which is Planning Policy Statement 7: Sustainable Development in Rural Areas ('PPS 7'), issued by the Office of the Deputy Prime Minister in 2004. It is said on behalf of the applicant that the inspector was in error both in finding that there was no 'functional need' (the term comes from PPS7) for the continual presence of a stockman on the land; and also in finding that, if there was such a need, it could be met by using the appeal building as a temporary shelter. Secondly, it is said that the inspector also erred in finding that the applicant's problems could, without breach of planning control, be solved by adopting the temporary shelter solution.
3. The applicant was represented by Mr Timothy Hartley. The Secretary of State was represented by Ms Sarah-Jane Davies. I am grateful to them for their written and, commendably brief, oral submissions. The NPA did not take part in the proceedings.

Narrative

4. The planning history is quite complicated.
5. The partners in the applicant firm are Mr J R Cussons ('Mr Cussons') and his son ('Mr Cussons junior'). Mrs Cussons' wife assists in the business, which is that of livestock farmers in North Yorkshire. The business is carried on upon three separate holdings, Howdale Farm, Bridge Farm, and Woodside Farm.
6. Howdale Farm lies about 1 mile inland from Robin Hood's Bay, 8.3 miles south of Whitby and 10 miles north of Scarborough. The farm comprises 48.53 hectares (119.92 acres). There are two cattle yards and a good range of modern agricultural buildings. There is also the appeal building, which I will describe later. There was a farmhouse which formed part of the property, but this was sold in 1989 after planning consent had been obtained for the house at Bridge Farm to which I am about to refer.
7. Bridge Farm lies about half a mile north of Howdale Farm. The area of Bridge Farm comes to 19.79 hectares (48.90 acres). There is a modern farmhouse, which is the home of Mr and Mrs Cussons, a cattle yard and a livestock building. Planning consent for the erection of the farmhouse was obtained on appeal in 1988 and the house was completed in 1990.
8. Woodside Farm is some distance from the other holdings, about 2.25 miles south of Howdale Farm and on the other side of the A171. Woodside Farm consists of 52.61 hectares (129.99 acres) of land owned by the applicant, and an additional 12.85 hectares (31.75 acres) which is rented. There is a cattle yard and a range of modern farm building. There are planning consents for a three bedroom house, which is yet to be erected, and for a static caravan, which is occupied by Mr Cussons junior pending the erection of the house.
9. The inspector found that the number of livestock kept on the farms varies, but at the time of the hearing before him there were about 60 breeding cows at Howdale Farm, a similar number at Woodside Farm, and about 26 bulls at Bridge Farm. The applicant was once, but was not at the time of the hearing, involved in breeding sheep. There was, however, a flock of lambs for fattening kept at Howdale Farm. The applicant would like to return to sheep breeding and to use common rights for grazing which are appurtenant to one of the properties, but the inspector regarded these as being "at present aspirations."
10. The appeal building was described by the inspector in these terms:

The appeal building has walls of natural and artificial stone, a concrete tile roof and Upvc windows. On the ground floor there is a fully equipped kitchen, a bathroom and two other substantial rooms used for office and storage purposes. There are three other rooms on the first floor, which are lit by roof lights. The building bears a close resemblance to a three-bedroom house and, indeed, the Appellants stated at the Inquiry that the change of use could be effected simply by moving furniture in and without making any structural alterations.

11. In 1997 the building was the subject of enforcement action, which required the applicant to cease using it for residential purposes. An appeal against a subsequent planning application for change of use to a dwelling was dismissed in 1999.
12. The current planning application for "change of use to a dwelling… for the accommodation of an additional agricultural worker" was lodged with the NPA as long ago as 26 June 2006 and was refused on 23 October 2006.
13. The applicant appealed against the refusal. The appeal was dismissed by an inspector on 23 August 2007. The applicant challenged the decision in High Court by way of an application under section 288. The challenge was successful, and by an order of Sullivan J made on 20 February 2008 the inspector's decision was quashed.
14. The appeal then went to a second hearing, with the same consequences. The appeal was dismissed by an inspector on 20 August 2008 and the applicant again commenced proceedings under section 288. On this occasion the Secretary of State recognised that the inspector's decision could not be upheld, and the decision was quashed by a consent order which was sealed on 27 May 2009.
15. The third inquiry took place on 5 and 6 January 2010. The decision of the inspector was, as I have already mentioned, dated 8 February 2010. The claim form in these proceedings was issued on 22 March 2010.

Evidence at the inquiry

16. The burden of the case for the applicant at the hearing was that it needed to use the appeal building as a residence for a stockman, who would have to be on call during the calving season. The evidence of Mr Cussons before this court, which was and is not contradicted by anything from the Secretary of State or the NPA, is that he and Mr Stephenson, the expert agricultural witness who was called for the applicant, both told the inspector "that calving normally takes place between November and May, but often extends into June and July." Statistics of the calving pattern which were reduced by the expert to tabular form are to the same effect.^[1]
17. Mr Purkiss, the expert witness who was called for the NPA, said in his report that the cows would need essential care at short notice when calving, i.e. about 60 times a year. On average, one could expect about two thirds of these occasions, which would equate to 40 births, to occur outside the limits of the normal 8 hour working day. Stock would also require essential care at short notice in unforeseen circumstances but, due to the high level of animal husbandry provided by Mr Cussons, there should be no more than 10 such occasions a year. Mr Purkiss therefore concluded that the appeal building would be required for use out of normal working hours no more than 50 times a year.

PPS7

18. As the argument before me was focused on PPS7, I should set out the relevant paragraphs of that statement in full. They are to be found in Annex A to the statement.

AGRICULTURAL, FORESTRY AND OTHER OCCUPATIONAL DWELLINGS

1. Paragraph 7 of PPS7 makes clear that isolated new houses in the countryside require special justification for planning permission to be granted. One of the few circumstances in which isolated residential development may be justified is when accommodation is required to enable agricultural, forestry and certain other full-time workers to live at, on in the immediate vicinity of, their place of work. It will often be as convenient and more sustainable for such workers to live in nearby towns or villages, or suitable existing dwellings, so avoiding new and potentially intrusive development in the countryside. However, there will be some cases where the nature and demands of the work concerned make it essential for one or more people engaged in the enterprise to live at, or very close to, the site of their work. Whether this is essential in any particular case will depend on the needs of the enterprise concerned and not on the personal preferences or circumstances of the individuals involved…

Permanent agricultural dwellings

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

(i) there is a clearly established existing functional need (see paragraph 4 below);

(ii) the need relates to a full-time worker, or one who is primarily employed in agriculture and does not relate to a part-time requirement;

(iii) 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…

(iv) the functional need could not be fulfilled by another existing dwelling on the unit, or any other existing accommodation in the area and which is suitable and available for occupation by the workers concerned; and

(v) other planning requirements, e.g. in relation to access, or impact on the countryside, are fulfilled.

4. A functional test is necessary to establish whether it is necessary for the proper functioning of the enterprise for one or more workers to be readily available at most times. Such a requirement might arise, for example, if workers are needed to be on hand day and night:

(i) in case animals or agricultural processes require essential care at short notice;

(ii) to deal quickly with emergencies that could otherwise cause serious loss of crops or products, for example, by frost damage or the failure of automatic systems.

The inspector's decision

19. I must now set out in full the material paragraphs from the decision-letter.

11. The practicality of managing the stock at Howdale Farm from Bridge Farm, which is some 700m away, has been a recurring theme throughout the various appeals. It is clear from his decision letter that the Inspector allowed the 1988 appeal relating to the house at Bridge Farm on the basis that it was required to meet the operational requirements of Howdale Farm.^[2] Mr Cussons also told the Inquiry that, when he was younger, he had no problems dealing with calving at Howdale Farm from the house at Bridge Farm. Leaving Mr Cussons' personal circumstances aside, it is clear that the house at Bridge Farm does provide suitable accommodation for a worker responsible for managing the livestock both there and at Howdale Farm.

12. Mr Cussons Jnr is now fully occupied with running Woodside Farm and the NPA says that there is a theoretical need for 1.8 full time workers at Howdale and Bridge Farms. The Inspectors who have previously dealt with this appeal accepted the need for another stockman and I see no reason to disagree with that conclusion. The question is whether it is necessary for this additional worker to live on the site. The test set in paragraph 4 of PPS7 Annex A is whether it is essential for the worker to be present at most times.

13. There is no dispute that, because of his advancing years and deteriorating health, it is becoming increasingly difficult for Mr Cussons Snr to carry out all the more physically demanding work on the farm. In particular it is difficult for him to cope with the arduous and potentially dangerous task of calving. Nevertheless, he told the Inquiry that he was not planning to retire from the business and indeed intended to expand it. He added that he would still be supervising the livestock and ensuring its condition and care. Following the arrival of the additional stockman the animals would, therefore, be well cared for during normal working hours.

14. The problem would arise during the winter months when the cows were calving. Cows can calve at any time during the day or night and typically go into labour only a few hours before delivery. It is unlikely that all of them would deliver their calves at night but, if they did, this would account for about sixty nights a year. However, because the farm relies on natural rather than artificial insemination, delivery dates can not be accurately predicted and calving is likely to extend over a number of months. There is no dispute that someone would need to be available at short notice to tend to them over this period. Mr Cussons Jnr would be too far away at Woodside Farm and would be occupied with calving there. Because of the personal circumstances of Mr Cussons Snr this task would in future fall to the new stockman.

15. Mr Cussons told the Inquiry that, since he can no longer tend the stock at Howdale Farm from the house at Bridge Farm, he and his wife stay overnight in the appeal building during the calving season. The animals in calf are inspected at frequent intervals throughout the day until about 19:00. During the night they are inspected at about 23:00, 03:00 and 06:00, after which the normal daily routine is followed.

16. As Mr Cussons can not be in two places at once it follows that the animals at Bridge Farm must be unsupervised while he is staying at Howdale Farm. Despite this both he and his vet have confirmed that there are no animal welfare issues at the farm at present. I am not, therefore, persuaded by the assertion that the stockman would have to be permanently resident on site so as to be constantly available to attend to the animals. It is clear that, for the majority of the year, the animals can be left unsupervised over night and that the need for a continual presence on site is limited to the calving season. The proposal therefore fails the test in paragraph 4 of PPS7 Annex A.

17. The nearest settlement where the stockman might live, Fylingthorpe, is within easy commuting distance but in my view it is too far away to permit the level of close supervision needed during calving.

18. The National Park Authority (NPA) has suggested two solutions to this problem, the first of which is that the stockman should lodge with Mr and Mrs Cussons at Bridge Farm. This was effectively the situation when Mr Cussons and his son ran Bridge Farm and Howdale Farm together but I consider that it would not be reasonable to expect Mr and Mrs Cussons to accommodate, in their family home, an employee who was not a family member.

19. The second NPA suggestion is that the stockman could live elsewhere and could use the appeal building as a temporary shelter while working with the cattle overnight during the calving season. The building has a bathroom and kitchen. I could see during my site visit that there was ample room in it and I am satisfied that the arrangement suggested by the NPA would not impinge upon its existing use for office, washroom and storage purposes.

20. The building is both suitable and available. This arrangement is, indeed, the one that the Appellants have themselves adopted and the evidence indicates that it works satisfactorily. The Appellants say that it would be unacceptable because the stockman would be separated from his or her family on these occasions. I do not accept that argument because there are many occupations that involve working on night shifts or occasional periods away from home.

21. The Appellants say that it would be difficult to recruit a stock worker unless they could offer accommodation. However, it seems to me that this would depend on the personal circumstances and preferences of the individuals concerned. While some might well wish to live on the farm, the appeal building is not close to schools, shops or other facilities and workers with families might prefer to reside in an established community and commute to work. The Appellants have submitted a letter from a recruitment agency in support of their assertion but I can attach little weight to it in the absence of any actual attempt to recruit someone.

22. It is also apparent that, at the time of the first hearing into the appeal, Howdale Farmhouse had been unoccupied for some time. The Inspector noted that there was no evidence that the Appellants had looked into the possibility of renting or repurchasing it.^[3] By the time the Inquiry began it had been occupied but there was still no evidence that the Appellants had tried to acquire it. In my view Mr Cussons' assertion that the current owner would not have agreed to let him have it because he did not like him is not an adequate explanation. I consider this lack of action to be inconsistent with the claim that there is an essential business need for a dwelling at Howdale Farm

23. My conclusion, taking into account all of the above and all the other points raised, is that the Appellants have failed to demonstrate that there is an essential need for a further dwelling at Howdale Farm and that the proposed change of use would conflict with LDF Core Policy J3.

The last reference is to the NPA's Local Development Framework, which expressly states that proposals for dwellings in the open countryside for persons employed in agriculture will be assessed against the criteria in Annex A of PPS7. The inspector went on to find that the change of use to domestic activities "and the appearance of household paraphernalia" around the appeal building would have an adverse effect on the rural character of the area.

Discussion

20. Mr Hartley rests his challenge to the inspector's decision on a twofold basis.
21. The first line of attack relates to functional need. Ms Davies, correctly in my judgment, broke down the question of functional need into two distinct parts. (1) Was the inspector correct in concluding that the applicant had failed to establish a need within paragraphs 3(i) and (ii) and 4 of Annex A to PPS 7? (2) If that conclusion was wrong, was the inspector's further conclusion that the need could be met on the temporary shelter basis a correct application of paragraph 3(iv) of Annex A?
22. Question (1) comes down to a matter of time. The key findings of the inspector are in paragraph 16 of the decision, in which he says that he was not persuaded that an employee "would have to be permanently resident on site so as to be constantly available to attend to the animals." At this point I am concerned with the constant availability issue, rather than the permanent residence issue. The inspector went on to say that it was "clear that for the majority of the year, the animals can be left unsupervised over night and that the need for a continual presence on site is limited to the calving season" and, for that reason, the proposal failed the functional need test.
23. I am reminded by Ms Davies, against correctly, that this court is not entitled to substitute its own view for a finding of fact made by the inspector where the conclusion was open to him on the evidence. I do not, however, accept that the conclusion which I have just set out can fairly be regarded as consistent with the evidence or with other, unchallenged, findings made by the inspector.
24. As to the evidence, the inspector was wrong to hold that "for the majority of the year" the cows could be left unsupervised. On the evidence before him, the calving season was not, as he assumed, limited to "the winter months" (see paragraph 14 of the decision) but was spread over at least 7 and, to a limited extent, a further 2 months of the year. This, in my judgment, undermines the finding as to "the majority of the year."
25. The other significant findings made by the inspector (again in paragraph 14 of the decision) have to do with the unpredictability of calving, which arises from two causes: given the mode of insemination, delivery dates cannot be accurately forecast; and labour starts only a few hours before delivery.
26. If one looks at all this material together, it appears to me that the only rational conclusion which was open to the inspector was that there was a need for a stockman to be available "at most times" (the words come from paragraph 4 of Annex A) in order to ensure the proper functioning of Howdale Farm.
27. One thus gets to question (2). As is clear from paragraph 3(iv) of Annex A, functional need is not by itself determinative. If the need can be "fulfilled" by means other than by the establishment of a new, permanent dwelling, then the need will not justify that establishment. The concept of fulfilment must, of course, incorporate the notion of reasonableness or practicality.
28. The relevant findings of the inspector are in paragraphs 19 and 20 of the decision and were vigorously attacked by Mr Hartley. There has been some controversy over the extent to which the inspector understood (or misunderstood) the submissions made on behalf of the NPA. I think, however, that my task is simply to take the solution propounded in the decision and to decide whether it can stand as a finding of fulfilment of a functional need by other means within paragraph 3(iv) of Annex A.
29. Mr Hartley's points in oral submissions were the inspector had both "failed to consider the practicalities and realities of the situation" and had produced "a solution which was potentially unlawful without considering its lawfulness." The latter point relates to the second line of attack on the decision (with which I deal in paragraph 32 below) rather than to the question which I am considering at present.
30. I confess to finding question (2) a difficult one. I have to bear in mind that the court should hesitate before interfering with a finding of the kind under consideration. I accept that there is support for the inspector's view in the regime adopted by Mr and Mrs Cussons during the calving season (paragraph 15 of the decision), although there may be a difference between what a farmer is prepared to do on his own land and the conditions which would be acceptable to an employee. These points were, understandably, emphasised by Ms Davies. Nevertheless, it seems to me that this part of the decision is vulnerable when one sets the solution advanced by the inspector against the proportion of the year over which attendance and use of the appeal building as a temporary shelter would be required. The solution advanced by the inspector might well be practicable and realistic if attendance was required only sporadically or intermittently over a few months of the year. I do not think that the solution can be so regarded where, on the evidence, constant supervision of the stock is called for over the greater part of the year. Alternatively, I would hold that the investigation of the practicalities of the situation was not sufficient as a basis on which to rest a finding in favour of the temporary shelter solution.
31. Accordingly, although with rather less confidence than I felt on question (1), my conclusion is that the decision on question (2) cannot stand.
32. The second line of attack is that the solution adopted by the inspector would or might involve the applicant in a breach of planning control. If the question had been material, I would not have acceded to this submission. I do not think that the use of the appeal building for use by a stockman as a temporary shelter, including the cooking of a meal or the snatching of a few hours sleep, could arguably constitute use as a dwelling.
33. Finally, contrary to Mr Hartley's submissions, I think that the inspector was right to discount lambing as a consideration which he should take into account. The breeding of sheep was at the time of the hearing a future question, rather than one which raised a present need.

Disposal

34. It follows from what I have said that the decision of the inspector must be quashed. There will now have to be a fourth inquiry and, in view of the time which has elapsed since the refusal of planning consent, I hope that this can be held at a reasonably early date.

Note 1   Ms Davies made some play with the absence of statistics for March-July 2009 from the Table in the expert’s report: but I am satisfied that the Table was copied from an earlier report of May 2008 and was not properly brought up to date. Anything that could be derived by the Secretary of State from the omission is overcome by the evidence to which I have referred above.    [Back]

Note 2   See paragraph 7 of this judgmeent.    [Back]

Note 3   The house was previously owned by the Cussons family: see paragraph 6 of this judgment.    [Back]