Brook v Secretary of State for Communities and Local Government & Anor

In determining whether an agricultural dwelling is justified, the functional need test requires consideration of whether a suitably qualified worker must be readily available and whether that need can be met by other suitable and available accommodation.

An inspector conducting an adversarial planning inquiry is not generally required to investigate a vague assertion that existing occupants have a right to accommodation, particularly where the parties are represented and no legal right is identified. The duty to take reasonable steps to obtain relevant information depends on the context. A court will not interfere where the inspector’s conclusion is reasonably open on the evidence.

An enforcement notice required the residential occupation of a twin-unit mobile home on an agricultural holding to cease and the structure to be removed. On an appeal under section 174 of the Town and Country Planning Act 1990, the Inspector corrected and varied the notice, dismissed the appeal and refused deemed planning permission.

The appellant brought a statutory appeal under section 289 of the 1990 Act. Permission was limited to the contention that the Inspector had acted unreasonably and unlawfully in concluding that the functional need test was not satisfied. The central issue was whether accommodation in an existing farmhouse was actually available, given that two grooms occupied rooms there.

1. Appeal dismissed. The Inspector was entitled to conclude that the functional need test was not satisfied and that the existing accommodation could meet the agricultural holding’s needs.
2. The relevant question was whether accommodation for a suitably qualified agricultural worker could be made available in House 1. The Inspector found that the occupants had no tenancy agreements and that one could be relocated so that the accommodation could be offered to the shepherdess or another suitable employee. His conclusion was directed to the needs of the holding, rather than the personal preferences or circumstances of the individuals concerned.
3. The appellant contended that the occupants had contractual rights to accommodation and that the Inspector had therefore disregarded a legally relevant consideration. After considering the Inspector’s witness statement, the appellant’s evidence and the contemporaneous notes, the court found that no contractual or legal right had been mentioned at the inquiry. The Inspector’s factual conclusion was reasonably open to him.
4. The principle in Secretary of State of Education and Science v Tameside MBC and E v Secretary of State for the Home Department requires a decision-maker to ask the right question and take reasonable steps to acquaint himself with relevant information. Its application depends on the circumstances. A planning inquiry is adversarial, and the context here included representation by counsel and the appellant’s own experience as a solicitor and judicial office-holder. If the appellant had referred only to a non-legal right to occupy, while accepting that there was no tenancy, the Inspector was not obliged to investigate further.
5. The court rejected the complaint that the issue arose by surprise. The Council’s evidence had made clear that existing dwellings and accommodation were relied upon to meet the holding’s needs, giving the appellant sufficient notice to adduce evidence of any legal impediment.
6. The appeal was dismissed. The appellant was ordered to pay the First Respondent’s costs, summarily assessed at £12,749.

• High Court (Administrative Court): Permission to appeal was granted on a single ground. Hickinbottom J subsequently amended the order under the slip rule to make clear that the appeal was under section 289 of the Town and Country Planning Act 1990 and was limited to the functional need issue. The appeal was dismissed.