Smith v The First Scretary of State & Anor

Under Annex A of Planning Policy Statement 7, residential accommodation at a rural enterprise must be essential to its proper functioning. It is insufficient that residence would materially assist the enterprise, provide advantages, or be ancillary and proportionate to it. The functional test must be applied to the particular enterprise, but the decision-maker may reject perceived benefits that do not establish an essential need. The requirement that a worker be readily available at most times does not prohibit consideration of whether continuous proximity is required. A planning decision addressing interference with home and family life need not spell out every consequence where the decision, read as a whole, shows that those matters were considered and proportionately balanced.

Louisa Smith challenged an inspector’s decision concerning an enforcement notice and refusal of planning permission for a woodland project at Whin Covert, East Ayton. The proposed development included residential caravans, storage containers, a workshop building, a polytunnel and related works.

The inspector granted permission for an access track but dismissed the appeals in other respects. The challenges concerned whether an on-site dwelling was functionally necessary under Annex A of Planning Policy Statement 7, whether alternative accommodation was available, and whether refusal of permission disproportionately interfered with rights under Article 8 of the European Convention on Human Rights.

1. Outcome. The application under section 288 of the Town and Country Planning Act 1990 was dismissed. Permission to appeal under section 289 was granted, but the appeal was dismissed.
2. Functional test. Annex A of Planning Policy Statement 7 required the inspector to determine whether residence on the land was essential for the proper functioning of the particular enterprise. A requirement that residence genuinely and materially assisted the project, or had a reasonable connection with it, was insufficient. The inspector was entitled to describe the need as compelling, since that conveyed the strength of the essential-need requirement.
3. The reference to a worker being available at most times did not prevent the inspector from considering whether someone needed to be close at hand at all times. The surrounding reference to workers being on hand day and night supported that approach. The test had to be applied to the activity proposed, whether conventional farming, subsistence farming, forestry or the woodland project in question.
4. Petter and Harris. Petter and Harris v Secretary of State for Environment Transport and the Regions concerned financial viability under the predecessor policy, not the functional test. Its reasoning concerning an accommodation being ancillary and proportionate related to financial viability and could not rewrite the functional test in Annex A.
5. The inspector had considered the nature and objectives of the project, the claimed benefits concerning animals, security and safety, alternative accommodation, personal circumstances and community benefits. He was entitled to distinguish other appeal decisions on their facts and lifestyle considerations.
6. Article 8. The inspector recognised interference with the appellant’s home and family life and balanced it against the legitimate objective of protecting the National Park. Read as a whole, the decision addressed loss of the home, alternative accommodation and the effect on the appellant’s children. The proportionality conclusion disclosed no error of law.
7. The appellant was ordered to pay the first defendant’s costs in the sum of £7,228, subject to a section 11 costs order under the Access to Justice Act 1999, with detailed assessment of costs incurred under the public funding certificate.

1. Planning inspector: Appeals against the enforcement notice and refusal of planning permission were dismissed except in relation to the access track.
2. High Court (Administrative Court): The section 288 application was dismissed. Permission to appeal under section 289 was granted, but the appeal was dismissed.