Fox v First Secretary of State

Whether land is used for grazing, keeping animals, or a mixed use is a question of fact and degree. The evidence must be considered in the round. Grazing does not preclude a separate use for keeping animals. An appellant under grounds (b) or (c) bears the burden of proof on the balance of probabilities. Stated intentions may be relevant to the factual assessment, but are not determinative. Desirable conservation works do not necessarily justify otherwise inappropriate development. A decision-maker need not consider conditions in detail where no specific condition is proposed and the fallback position is not reached.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dismissing an appeal concerning an enforcement notice issued by Kettering Borough Council. The notice alleged a material change of use from agriculture to a mixed use for agriculture and the keeping of horses, together with associated buildings and sheds.

The inspector also dismissed a planning appeal, but that decision was not challenged. The claimant alleged errors of law concerning grazing, material considerations, intention, permitted development and the steps required by the notice.

1. Appeal dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £3,657.25.
2. Under grounds (b) and (c), the appellant bears the burden of proving the relevant case on the balance of probabilities. Whether land is agricultural, or has a mixed use including the keeping of horses, is a question of fact and degree. The inspector was entitled to consider the number of horses, observations by council officers, the feeding arrangements and the presence of a feeding manger. Grazing and keeping may coexist, but the evidence supported a distinct use for keeping horses.
3. The inspector correctly considered Sykes v Secretary of State for the Environment (1981) 42 P & CR 19. That case concerned an all-or-nothing allegation, whereas the present notice alleged mixed use. The status of the horses as racehorses did not establish the mixed use, but removed a possible argument that they were kept for agricultural production.
4. The claimant’s earlier applications and stated intentions were relevant evidence as part of the overall factual picture, although intention was not determinative. East Dunbartonshire Council v Secretary of State for Scotland and another [1999] 1 PLR 53 was distinguishable.
5. The inspector had considered the conservation works, petition, FWAG report and former crew yard. He was entitled to conclude that those matters did not justify inappropriate development in the special landscape area. There was no need to examine conditions in detail because no specific condition was proposed and the fallback position was not reached.
6. Once the land was found to have a mixed agricultural and equestrian use, the building for that mixed purpose was not permitted development under Article 3 of Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) Order 1995.
7. The inspector was entitled to conclude that removal of the building, its concrete base and the sheds was necessary to remedy the breach.

The judgment records an appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision letter dated 11 October 2002. The separate planning appeal was dismissed but was not challenged.