J R Cussons & Son (A Firm) v Secretary of State for Communities and Local Government & Anor

Under Annex A to Planning Policy Statement 7: Sustainable Development in Rural Areas, functional need depends on whether a worker must be readily available at most times for the proper functioning of the agricultural enterprise. The assessment must reflect the evidence, including the duration and unpredictability of seasonal work. Functional need is not by itself sufficient: the need must also be incapable of reasonable and practical fulfilment through existing accommodation or other arrangements. A temporary shelter may be a lawful alternative to residential use, but its practicality must be assessed against the frequency and duration of the required attendance.

The applicant farming partnership challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision dated 8 February 2010 dismissing its appeal against refusal of permission to change an office, washroom and store into a dwelling for an agricultural worker.

The applicant argued that the inspector had wrongly rejected a functional need for a stockman to be available during calving and had wrongly concluded that the need could be met by using the building as a temporary shelter. It also argued that the proposed arrangement might breach planning control. The central issues were whether the evidence established functional need and whether that need could reasonably and practically be fulfilled without a permanent dwelling.

1. The inspector’s decision was quashed. A fourth inquiry was required.
2. The court was not entitled to substitute its own view for a factual conclusion open to the inspector on the evidence. However, the inspector’s conclusion that the animals could be left unsupervised for the majority of the year was inconsistent with the evidence and his other findings. Calving extended over at least seven months, with a limited extension into two further months, and delivery dates were unpredictable.
3. The only rational conclusion open to the inspector was that a stockman needed to be available at most times to ensure the proper functioning of the farm. This satisfied the functional-need issue under paragraph 4 of Annex A to Planning Policy Statement 7: Sustainable Development in Rural Areas.
4. Functional need was not determinative. Under paragraph 3(iv), the need had to be capable of fulfilment by other means before a permanent dwelling could be justified. Fulfilment incorporated reasonableness and practicality. The proposed temporary-shelter solution was vulnerable because it had been assessed against an inadequate understanding of the period over which attendance would be required. It might be realistic for sporadic attendance over a few months, but not where constant supervision was required over most of the year.
5. Had the planning-control issue been material, the court would have rejected it. Use of the building by a stockman as a temporary shelter, including cooking a meal or sleeping for a few hours, could not arguably amount to use as a dwelling.
6. The inspector was entitled to disregard lambing because sheep breeding was only a future aspiration and did not establish a present need.

• High Court (Administrative Court): Earlier inspector decisions concerning the same application had been quashed, including one by an order of Sullivan J dated 20 February 2008 and another by consent on 27 May 2009.
• High Court (Administrative Court): The present challenge succeeded; the inspector’s decision dated 8 February 2010 was quashed and the matter required a further inquiry.