The law is an ass

‘ “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot.” ‘

Charles Dickens’ beadle was probably not the first to call the law an ass and he undoubtedly won’t be the last. Nevertheless, whatever at times we might think of planning law, it is up to us to apply it in letter and spirit. Whether an inspector did quite that when he allowed an appeal (DCS Number 200-009-472) against a council’s refusal to remove an agricultural occupancy condition from a bungalow in north Yorkshire is open to question.

Having found that the surrounding agricultural land no longer formed a market garden connected with the property and that the property had been adequately marketed, the inspector concluded that the agricultural occupancy condition was no longer reasonable or necessary, having regard to the changed circumstances of the site and the absence of any demonstrated demand for the accommodation.

The council pointed out, however, that the original permission was for “the erection of a dwelling house and private garage in connection with a market garden”, and submitted, the inspector recorded “a copy of a recent Court of Appeal judgement in Finney v Welsh Ministers & Ors [2019] EWCA 1868 (‘Finney’), which held that an application under Section 73 of the Act may not be used to obtain a varied planning permission when the change sought would require a variation to the terms of the “operative” part of the permission (i.e. the description of the development for which planning permission had been granted).” He clarified that “In essence, the judgement states that a local planning authority must only consider the question of the conditions and cannot consider the description of the development to which the conditions are attached.”

The council suggested that the operative part of the permission was ‘in connection with a market garden’ and, having regard to Finney, the removal of the disputed condition (a standard agricultural occupancy condition) would not be possible as it would result in a new planning permission for a development of a different nature from that originally approved, i.e. an open market dwelling. The appellant, on the other hand, contended that the original planning permission granted consent for a dwelling house and private garage and the condition in dispute did not restrict the occupation of the dwelling in relation to the market garden, arguing that reference to the market garden was only descriptive.

The inspector observed that there was no request from the appellant to alter the description of development. He was satisfied that the disputed condition did not tie the occupation of the dwelling to the market garden and as such held that its removal would not be comparable to the situation in Finney, where the description of development was altered to avoid a potential conflict with the requirements of a replacement condition. As no replacement condition was proposed, he reasoned that such a conflict would not occur. Accordingly, he deleted the condition and granted permission for “the erection of a dwelling house and private garage in connection with a market garden”. Is this the market garden no longer connected with the dwelling?

Now, having decided that the condition was no longer reasonable or necessary it seems that the inspector’s problem was that he could not remove reference to the market garden from the description of development without his decision falling foul of Finney. At times, it can be better just to recognise that the law is an ass.

Section 9.4 of DCP Online concerns the removal of agricultural occupancy conditions.