In the world of rural planning, it is common to hear the term “agricultural bungalow” used as shorthand to refer to a bungalow that is subject to a planning condition or Section 106 planning agreement that restricts its occupation to persons employed or last employed in agriculture. However, what if there is no planning condition or Section 106 planning agreement? That question has been addressed by a planning inspector in a recent decision published on 31 August 2023.
Outline planning consent had been granted in 1973 to “develop land by the erection of agricultural bungalow and garage, modify vehicular access”. The reserved matters application had been approved in 1976 and the bungalow had been built and occupied by Mr & Mrs Bush. In 2010, their daughter, Valerie Puckett, and her husband moved in to the bungalow to care for her elderly parents.
In 2021, Mr & Mrs Puckett made an application to the local planning authority, Dorset Council (Dorset), for a certificate of lawful use or development (CLUED) allowing the use of the bungalow as a dwellinghouse without any agricultural occupancy restriction. Dorset refused the application and Mr & Mrs Puckett appealed the refusal.
Due to the passage of time, the outline planning consent had been lost or destroyed and the only reference to it was in the reserved matters application which remained on the planning file. There was no planning agreement (which, in 1973 would have been made under Section 52 of Town and Country Planning Act 1971) and there was no planning condition to restrict the occupation of the bungalow.
Mr and Mrs Puckett argued that, in the absence of planning conditions restricting the occupation of the bungalow, any occupancy condition could not be enforced and a CLUED should be granted. Dorset argued that, in planning terms, the grant of planning consent for “an agricultural bungalow” was not the same as the grant of planning consent for a dwelling that was then made subject to occupancy conditions and that the effect of the description of the consented development was that the bungalow could only be occupied by persons employed in agriculture. It said that under the relevant planning policy, if it had not been an “agricultural bungalow” planning consent would not have been granted as it was located where an unrestricted dwelling would not have been permitted. It also argued that the consent should have what it described as an implied condition attached to it to restrict the occupation of the bungalow.
On the question of an applied condition, the inspector disagreed with Dorset and took the view that, although the planning consent may have included a condition it was impossible to know if that was the case. He also flagged up the question of enforcement and said that he did not think it is possible to enforce a condition that doesn’t exist and concluded that there was therefore no operative condition to restrict the occupation of the dwelling.
The inspector then referred to case law and accepted Dorset’s argument that, in planning terms, the grant of consent for an “agricultural bungalow” was materially different from the grant of consent for an unrestricted dwelling. In doing so, he relied on a High Court case in which the judge had decided that, for planning purposes, travelling showpeople are a distinct group with specific needs and that the grant of consent for a site for use by travelling showpeople was of “functional significance” when determining the lawful planning use.
The judgment in that case is an interesting read. It refers to planning guidance at the time that explained that the particular needs of travelling showpeople where different from the needs of gypsies and travellers and determined that a planning consent that allowed the use of a site by travelling showpeople was of “functional significance” because it related to a particular sui generis use.
The inspector acknowledged that the question of the functional significance or otherwise of the description of development or use is a complex issue. However, in what was a very short decision, he dealt with it in only 4 paragraphs. The substantive section of his decision is at paragraph 9 where he said:
“Are agricultural workers a distinct group and would the occupation of the bungalow by a non-agricultural worker raise different planning issues? In other words would it be a material change of use if occupied by a non-agricultural worker? That has not been argued before me, but it is at least arguable that it would. Consequently, on the balance of probabilities I cannot say that the bungalow can be occupied lawfully by persons who are not engaged in agricultural (sic), and a certificate cannot be issued.”
Some readers may consider that determining a planning appeal on grounds that have not been argued is, to say the least, a bit of a “fudge”. We could not possibly comment. What the inspector says is clearly not a ringing endorsement of Dorset’s case, nor does it provide a definitive answer to the questions that he had asked himself. He was not helped by the fact that the arguments around the issues had not been put to him. The key question therefore remains for another day. That question is whether, in planning terms, the residential use of a bungalow by an agricultural worker is materially different from the residential use of the same bungalow by anyone else?
We would welcome the opportunity to have a go at answering that one.
In the meantime, we would remind all applicants for planning consent to think carefully how they describe the development or change of use for which they are applying.
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