Epping Forest District Council, R (on the application of) v Secretary of State for Transport, Local Government & the Regions

In deciding whether to remove an agricultural occupancy condition, the relevant question is whether there remains a need for such a dwelling in the locality, not merely on the original holding. The decision-maker must consider the open-market value, the price reasonably payable by a qualifying purchaser, the extent and quality of marketing, and the evidence of demand. There is no requirement to identify a precise realistic price. Rule-of-thumb discounts may assist, but the assessment is one of judgment based on the particular evidence. A decision letter must be read as a whole. An isolated observation will not invalidate the decision if it was merely additional reasoning and the overall conclusion was reasonably open to the decision-maker.

The claimant local authority challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision allowing an appeal under section 78 and deleting an agricultural occupancy condition attached to a bungalow. The condition had originally been imposed because the property lay in the Green Belt. By the time of the appeal, the former pig farm had ceased operating and the owners relied on extensive unsuccessful marketing and the absence of qualifying demand.

The claimant argued that the Inspector’s conclusion on local demand was unsupported by evidence and that he had failed to determine whether the property had been marketed at a realistic price reflecting the occupancy restriction.

1. The claim was dismissed. The Inspector’s decision to remove the agricultural occupancy condition disclosed no error of law.
2. The relevant assessment was whether the condition remained necessary and reasonable in the locality. The need for a dwelling for a person working, or last working, in agriculture had to be assessed in the area as a whole, consistently with PPG7 and policy GB17 of the local plan.
3. The Inspector was entitled to consider the evidence of agricultural and horticultural activity, the likely availability of dwellings on existing holdings, and the results of the marketing exercise. The finding that the evidence did not indicate sufficient demand was reasonably open to him. In any event, the observation that most horticultural holdings were likely already to have a dwelling was an additional factor, not necessary to the conclusion.
4. The assessment of value was not a precise valuation exercise. The Inspector had to consider both the unrestricted market value and the price reasonably expected to be paid by a person satisfying the condition. The price had to be considered together with the evidence of demand and marketing. A specific realistic price did not have to be identified.
5. Demand could not be divorced from price, but the Inspector’s reasoning, read as a whole, recognised that principle. The property had been marketed at discounts supported by evidence of comparable sales, and the absence of offers or firm interest justified the conclusion that there was no demand at any price reasonably payable by a qualifying purchaser.
6. Nicholson v Secretary of State for the Environment [1998] JPL 553 and the Oaklee Farm appeal were decisions on exceptional facts. Neither established a rule requiring a specific realistic price to be determined in every case.
7. The claimant was ordered to pay the First Secretary of State’s costs, summarily assessed at £6,710, and the second and third defendants’ costs, summarily assessed at £1,233.75.

The Inspector allowed the owners’ appeal under section 78 of the Town and Country Planning Act 1990 and deleted the agricultural occupancy condition. The Administrative Court dismissed the local authority’s statutory challenge under section 288.