Hook v Secretary of State for Housing, Communities and Local Government & Anor (Rev 1)

A Green Belt dwelling falls within the exception for buildings for agriculture only where, as a matter of fact and degree, it is genuinely ancillary to an agricultural use. The decision-maker must assess the reality of the existing and proposed development. A description of development and a suggested agricultural occupancy condition cannot require an unreal assumption that a non-agricultural dwelling will become agricultural.

An agricultural occupancy condition is relevant only after it is established that the development is, or will be, a building for agriculture. A condition cannot lawfully be used to convert the development under consideration into different development to which it does not fairly and reasonably relate. Where that prior factual issue is resolved against the applicant, the condition is not a material consideration and requires no separate reasons.

The claimant sought retrospective planning permission for a dwelling on a small Green Belt site, together with prospective permission for an extension. She contended that the dwelling was ancillary to horticultural and agricultural activity and that an agricultural occupancy condition could secure that position.

An inspector dismissed her appeal under section 78 of the Town and Country Planning Act 1990. He found that the small-scale horticultural activity and recreational keeping of two horses did not make the dwelling ancillary to agricultural use. It was therefore not a building for agriculture under paragraph 89 of the National Planning Policy Framework and was inappropriate development in the Green Belt.

Permission for statutory review was refused in the High Court, including in the decision reported at [2018] EWHC 3843 (Admin). The Court of Appeal determined whether the inspector had to consider the suggested condition, whether the costs decision was procedurally unfair, and whether adequate reasons had been given.

1. The application was dismissed. Lord Justice Lindblom held that the inspector lawfully concluded that the dwelling was not a building for agriculture and was therefore inappropriate development in the Green Belt. Lord Justice Peter Jackson and Lady Justice Asplin agreed.

2. Whether a dwelling is a building for agriculture under paragraph 89 of the National Planning Policy Framework is classically a question of fact and degree. The inspector was entitled to find that the horticultural activity was domestic in scale, produced only a minimal part of the claimant’s income, and that the keeping of two horses for recreation was a small operation. The dwelling was the primary development and not ancillary to agricultural use.

3. The inspector had to decide the substance and reality of the retrospective proposal under sections 70 and 73A of the Town and Country Planning Act 1990. Neither the agreed description of development nor the suggested occupancy condition compelled him to assume a future agricultural enterprise which had not been proposed or supported by the evidence.

4. A planning condition must serve a planning purpose, fairly and reasonably relate to the permitted development, and not be Wednesbury unreasonable. The suggested condition was relevant only if the building had first been established to be a building for agriculture. It could not alter the character of the actual development, which the inspector had found was not agricultural. The condition was consequently not a material consideration and did not require separate consideration.

5. There was no procedural unfairness. The condition had been identified in the hearing agenda, discussed at the hearing, and addressed by experienced counsel for the claimant. The inspector’s findings also gave intelligible and adequate reasons for dismissing the appeal without granting permission subject to that condition. His brief explanation in the costs decision was a rational corollary of those findings.

• Court of Appeal (Civil Division): The claimant’s application for planning statutory review was dismissed: [2020] EWCA Civ 486 .
• High Court (Administrative Court): Permission to proceed under section 288 of the Town and Country Planning Act 1990 was refused, first on the papers and then at an oral hearing before a deputy High Court judge: [2018] EWHC 3843 (Admin).
• Planning Inspector: The claimant’s section 78 appeal against Surrey Heath Borough Council’s refusal of retrospective planning permission was dismissed on 6 July 2018.