Gregory Gray Associates
CHARTERED TOWN PLANNING CONSULTANTS
Victoria House, 18-22, Albert Street, Fleet, Hampshire, GU51 3RJ
Tel: 01252 624004 Fax: 01252 626431
E-Mail: info@ggassociates.co.uk
PROOF OF EVIDENCE
OF GREGORY GRAY
ON BEHALF OF MR. N. SPENCER
IN RESPECT OF AN APPEAL AT
MORTON SPIERT FARM,
ABBOTS MORTON ROAD,
ABBOTS MORTON.
PI REF: APP/H1840/A/12/2173149/NWF
LPA REF: W/12/00226/PN
GGA REF: MSF/11/829
SEPTEMBER 2012
© Copyright GGA Ltd. Not to be reproduced in whole or in part without the prior written consent of the author.
Director: G.W.R. Gray MSc. Dip.TP MRTPI ACI.Arb Secretary: C.J. Gray
Associate Director: M.G. Cole BA(Hons.) Dip.TP MRTPI
Associates: D.C. Butcher BA(Hons.) MA MRTPI A.J. Ayles BA(Hons.) BTP MRTPI
Gregory Gray Associates is the trading name of Gregory Gray Associates Limited. Reg. No. 4633530
Registered Office: ‘Redcliffe’, 17 Dinorben Close, Fleet, Hants, GU52 7SL
.
CONTENTS
Page
1.0
INTRODUCTION
4
2.0
SITE DESCRIPTION
5
3.0
DETAILS OF APPEAL APPLICATION
6
4.0
RELEVANT PLANNING HISTORY
8
5.0
RELEVANT PLANNING POLICY
12
6.0
CASE ON BEHALF OF THE APPELLANT
17
7.0
CONCLUSIONS
21
List of Documents
Pages
1.
Unilateral Undertaking offered by Appellant
1/1 – 1/19
2.
Officer’s Report Application W/12/00226/PN
2/1 – 2/5
3.
Design and Access Statement Application W/08/01715/PN
3/1 – 3/9
4.
Officers/ Report Application W/08/01715/PN
4/1 – 4/5
5.
Wychavon District Local Plan
5/1 – 5/7
6.
Appeal Decision APP/H1840/A/12/2170075 – Dormer Windows 6/1 – 6/3
Appeal
2
Gregory William Ross Gray will say:
I am a Master of Science and hold a Diploma in Town Planning and am a Member of the
Royal Town Planning Institute and an Associate of the Chartered Institute of Arbitrators. I
am Director of Gregory Gray Associates and have been engaged in town planning work for
the past 30 years, in the public sector and as a private consultant instructed by development
and commercial companies. In addition I have been instructed by various public bodies
including Government Departments, District and Parish Councils together with Resident’s
Associations and individuals.
I have visited the appeal site and its surroundings and have examined the relevant plans and
documents for the purpose of this inquiry.
3
1.0
INTRODUCTION
1.1
My evidence is submitted in respect of an appeal by Mr. N. Spencer against the
refusal by Wychavon District Council to discharge condition 4 of planning
permission W/08/01715/PN, which imposed an agricultural occupancy tie, at Morton
Spiert Farm, Abbots Morton Road, Abbots Morton.
1.2
1.3
My evidence is set out as follows:
2.0
Site Description
3.0
Details of Appeal Application
4.0
Relevant Planning History
5.0
Relevant Planning Policy
6.0
Case on behalf of the Appellant
7.0
Conclusions
Mr. Spencer the Appellant will give evidence on the background to the construction
of his house and his main source of income. Mr. Rhodes will give evidence on
agricultural matters.
4
2.0
SITE DESCRIPTION
2.1
Morton Spiert Farm extends to approximately 40 hectares and is located in open
countryside to the east of the village of Abbots Morton. This appeal relates to a
condition restricting occupation of the Appellant’s house, located on the northern part
of the farm and some 500m from the farm buildings.
2.2
The house is accessed by a drive from Abbots Morton Road, which is located to the
south west of the dwelling adjacent to a complex of farm buildings. The house was a
replacement for the pre-existing bungalow, which has now been converted into a
livestock shed.
2.3
The site lies within the countryside and partially within Flood Zone 3. The dwelling
was sited to avoid the flood plain. No other specific designations apply to the site.
5
3.0
DETAILS OF THE APPEAL APPLICATION
3.1
The appeal application was submitted in February 2012 and sought the discharge of
condition 4 of planning permission W/08/01715/PN, which imposed an agricultural
occupancy condition on the approved house.
3.2
As part of the appeal application the applicant offered to enter into a Unilateral
Undertaking, which would substitute for the condition in dispute and would prevent
the separation of the dwellinghouse from the surrounding land. An Undertaking in
the same terms is offered as part of the current appeal. A copy is attached Doc. 1. The
Authority has already been supplied with a copy.
3.3
The Officer’s Report on the appeal application stated:
“In the case of a replacement dwelling which is the subject of an agricultural
occupancy condition, if the application is for a replacement dwelling with an
agricultural tie rather than a new permanent dwelling then it is considered that it is
not necessary for the functional and financial viability of the farming enterprise to be
re-examined. However, the replacement dwelling would be subject to an agricultural
occupancy condition which would be transferred over from the existing dwelling. As
such, caution would be required regarding the size of the replacement dwelling to
ensure that it is comparable with the existing dwelling it replaces. The aim of which
is to avoid the erection of a much larger dwelling which could prove difficult to
support on an agricultural wage. In this instance weight was also given to the
permitted development rights of the original bungalow, including the additional
habitable floor space which could be provided within the roofspace of the bungalow
to be demolished and subsequently a replacement dwelling was approved which was
greater than the 150 sq.metres in floor area set out in policy COM7 Agricultural
Workers’ and Other Rural Workers’ Dwellings of the Local Plan”. (Document 2/3)
3.4
The Council refused the appeal application on 13th March 2012 for the following
reason:
“Planning permission was granted on 2 September 2008 under planning reference
W/08/01715/PN for the demolition and replacement of a dwelling which had a
longstanding agricultural tie. The permission for the new dwelling included the
transfer of the agricultural tie in accordance with saved policies COM7, COM9 and
6
GD1 of the Wychavon District Local Plan (June 2006). In the opinion of the local
planning authority the removal of the lawful agricultural tie on permission
W/08/01715/PN (condition 4) would seriously undermine the strategic policies of the
Local Plan and the strong principles of restrictions on residential development in
rural areas to those which meet special circumstances and requirements as identified
under saved policy COM7. Furthermore, the proposal fails to demonstrate
compliance with saved policy COM 9 of the Local Plan in that the circumstances
since the tie was imposed have not changed, the dwelling is still located outside a
defined development boundary and there has been no evidence submitted that would
demonstrate to the local planning authority that the agricultural dwelling is not need
in the long term”.
7
4.0
RELEVANT PLANNING HISTORY
4.1
The circumstances surrounding the original imposition of condition 4 (the agricultural
occupancy condition) are entirely pertinent to the determination of the current appeal.
Details of this application and its consideration are set out below.
A. Application W/08/01715/PN
4.2
Application W/08/01715/PN sought permission for the: ‘demolition of existing
dwelling within flood plain and erection of a replacement dwelling outside of the
flood area, together with associated works’.
4.3
The application was not framed in terms of its seeking permission for an agricultural
worker’s dwelling. No agricultural justification accompanied the application.
4.4
The original dwellinghouse comprised a bungalow with a floor area of some
175sq.m. It was subject to an agricultural occupancy condition. The approved
replacement dwelling extended to 323sq.m.
4.5
The applicant provided evidence as to the need to re-locate the proposed dwelling
outside of a Flood Risk Area that affected the original bungalow.
4.6
The Design and Access Statement (Doc. 3) made clear the applicant’s reason for
wanting a dwelling of the scale proposed stating: “As our clients want to build a
building which is of high quality and design it is important to maximise the amount of
floorspace available within the replacement dwelling in order to ensure a return on
investment and that they benefit from having a much better family home upon
completion and we have had meetings and discussions with Neil Pearce to determine
the extent that we can go within current planning legislation.
“Neil Pearce has allowed us to take into consideration the amount of floor space that
our clients can currently create using their permitted development rights within the
existing dwelling these include an extension to the rear of the property, the
conversion of the roof space and the erection of a new garage 500m away from the
existing dwelling. All of these works could be carried out by our client without the
need to apply for planning permission.
8
“We have measured the existing dwelling and calculated the total size of the floor
area that can be created and then used this information to design our replacement
dwelling so that it (is) comparable in size and it was this information that we applied
following our meeting with Neil Pearce who preliminarily assisted our client in
selecting a style and location for the replacement dwelling and then guided us
towards getting these sizes comparable to assist the justification for the size of the
replacement dwelling”.(Doc. 3/ 5)
4.7
The Officer’s Report (Doc. 4) made it clear that the scale of the replacement dwelling
was accepted on the basis of the existing floor area of the bungalow together with the
extent of the habitable accommodation that could have been provided within its
roofspace and the existing garage, without the need for planning permission. It was
stated that: “The proposed dwelling has been amended in design and scale to ensure
that it would be no greater than the potential habitable floor area of the existing
dwelling…”. (Doc. 4/2). No reference to any policy legitimising this approach was
included in the Report.
4.8
The only reference made in the Report to the appeal condition came under the
heading ‘Agricultural Tie’ and stated: “In accordance with policy COM7 the
agricultural occupancy restriction on the existing dwelling will be reapplied to the
new dwelling” (Doc. 4/4). No reference was made to the actual wording of Policy
COM7. (Doc. 5/3).
4.9
Regardless of any assessment of the tests applicable to agricultural worker’s
dwellings in Policy COM7, planning permission was granted for the replacement
dwelling subject to condition 4:
“The occupation of the dwelling shall be limited to a person solely or mainly
working, or last working, in the locality in agriculture or in forestry, or a widow or
widower of such a person, and to any resident dependants.”
Reason: “The Council would not be prepared to grant consent for the proposed
development, unconnected with the use of the adjoining land for agricultural or
similar purposes”.
9
B Planning Application W/11/01647/PN
4.10
During the construction of the dwelling two dormer windows were inserted into the
front roof slope of the house.
4.11
An application for: “Retrospective substitution of house type to include dormer
windows. (Amendment to approved application W/08/01715/PN)” was refused on
17th October 2011 for the following reasons:
‘1. It is considered that the installation of dormer windows would enable the use of a
substantial amount of the second floor of the dwelling as additional habitable space.
The increase in habitable floor area of the dwelling would result in a dwelling which
would be substantially greater in size than the original bungalow that it was
proposed to replace. As such the proposal would be contrary to policy RES9 of the
adopted Wychavon District Local Plan (June 2006).
2. The dwelling is the subject of an agricultural occupancy condition. The Local
Planning Authority considers that an increase in the habitable floor area of the
property, including the provision of two additional rooms at second floor level
facilitated by the dormer windows, would increase the habitable accommodation
which would result in a dwelling which would not be commensurate with the size of
the holding and would be unusually large and therefore difficult to sustain in the long
term on an agricultural wage. The proposal would therefore be contrary to Policy
COM7 of the adopted Wychavon District Local Plan (June 2006) and advice
contained within PPS7.’
4.12
An appeal against the refusal of this application was allowed on 13th August 2012
(ref: APP/H1840/A/12/2170075) (Doc. 6).
4.13
In allowing the appeal, the Inspector stated:
“12. With regard to WDLP Policy COM7, the appellant has indicated that the
associated holding is about 40 hectares. I observed that, although it includes
agricultural buildings that appear to me in good condition and land that is
conveniently situated in relation to the dwelling, it would be unlikely to be sufficient
size to support such a substantial house. Therefore, I am not satisfied that the
10
permitted replacement dwelling is one that relates to this Policy, as there is limited
evidence to show that its size and specification is reasonably related to the functional
requirement of the unit. Also, it is considerably larger in area than the 150 sq.m that
accompanying paragraph 5.2.43 indicates as being the limit for an affordable
agricultural dwelling for agricultural wage earners. (Doc. 6/2).
13. For the reasons given above, I find that the dormer windows do not significantly
increase the size of what is a substantial dwelling. As such, they do not result in a
dwelling that is an unacceptable size in the open countryside. Whilst the resulting
replacement dwelling does not accord with WDLP Policies RES9 and COM7, I am
satisfied that the dormer windows do not make any material difference to its noncompliance with these Policies. Therefore, having regard to all matters raised, I
conclude that the appeal should succeed” (Doc. 6/3).
4.14
The Inspector’s findings are clearly relevant to the present appeal.
11
5.0
RELEVANT PLANNING POLICY
National Policy
5.1
The appeal application seeks the discharge of a condition imposed on planning
permission W/08/01715/PN, which was granted in September 2008. At the time of
this application, relevant national policy was provided by the then extant PPS7 Sustainable Development in Rural Areas.
5.2
Paragraph 10 of PPS7 stated:
“Isolated new houses in the countryside will require special justification for planning
permission to be granted. Where the special justification for an isolated new house
relates to the essential need for a worker to live permanently at or near their place of
work in the countryside, planning authorities should follow the advice in Annex A to
this PPS.”
5.3
Paragraph 2 of Annex A stated:
“It is essential that all applications for planning permission for new occupational
dwellings in the countryside are scrutinised thoroughly with the aim of detecting
attempts to abuse (e.g. through speculative proposals) the concession that the
planning system makes for such dwellings. In particular, it will be important to
establish whether the stated intentions to engage in farming, forestry or any other
rural-based enterprise, are genuine, are reasonably likely to materialise and are
capable of being sustained for a reasonable period of time. It will also be important
to establish that needs of the intended enterprise require one or more of the people
engaged in it to live nearby”.
5.4
Annex A (para. 3) set out a functional and a financial needs test that was necessary in
order to establish whether there was an existing need to have a full-time worker
living on the site and to demonstrate the financial viability of the farming enterprise
and evidence of the size of dwelling which the unit could sustain.
5.5
Para. 9 of the Annex stated that: “Agricultural dwellings should be of a size
commensurate with the established functional requirement. Dwellings that are
unusually large in relation to the agricultural needs of the unit, or unusually
expensive to construct in relation to the income that it can sustain in the long-term,
should not be permitted …”
12
5.6
There was no provision in PPS7 that suggests that an agricultural occupancy tie can
be transferred between dwellings without the need to apply these functional and
financial tests. Indeed, as quoted above, para. 2 states the necessity of thoroughly
scrutinising all applications for planning permission for new occupational dwellings.
I have not been able to find any evidence that the Council did this assessment or
required the applicant to do so.
NPPF
5.7
PPS7 was superseded with the publication of the National Planning Policy
Framework (NPPF) on 27th March 2012. Para. 55 of the NPPF re-states the policy of
restraint that should be applied to new residential development outside settlement
boundaries: “Local planning authorities should avoid new isolated homes in the
countryside unless there are special circumstances such as:

the essential need for a rural worker to live permanently at or near their place of
work in the countryside....”
5.8
No specific guidance replaces the advice contained within Annex A of PPS7. The
current tests remain the same therefore or the policy of the NPPF would be
unacceptable without such controls.
Circular 11/95: Use of Conditions in Planning Permissions
5.9
The Circular provides guidance as to the use of conditions in planning permissions. It
represented Government policy at the time that the original occupancy condition was
imposed and remains in force.
5.10
The Annex sets out 6 tests for the validity of a condition, namely it should be:
i. necessary,
ii. relevant to planning,
iii. relevant to the development to be permitted,
iv. enforceable,
v. precise, and
vi. reasonable in all other respects.
5.11
Para. 10 identifies the need for Authorities to state precise reasons for imposing each
condition in order to ensure that they are properly justified and to provide clarity and
13
credibility to the process. The Circular refers to the statutory requirement imposed by
virtue of Article 22 of the Town & Country Planning (General Development
Procedure) Order 1995 to state the reasons for the imposition of every condition. That
provision remains in place. Para. 42 states that an unreasonable condition does not
become reasonable because an applicant suggests it or consents to its terms. It must
always be justified on its planning merits.
5.12
Paragraphs 102-105 of the Annex addresses proposals for agricultural dwellings.
Para. 105 of the Annex sets out the circumstances relevant to considerations when an
agricultural occupancy condition may have been inappropriately imposed and the
relevant tests to be applied. As the paragraph notes, the fact that planning permission
for a dwelling would in all probability be granted today without an occupancy
condition is a material consideration.
Statutory Instruments
5.13
At the time of the original (2008) determination the Town and Country Planning
(General Development Procedure) Order (as amended) stated (inter alia):
“When the local planning authority gives notice of a decision or determination on an
application for planning permission or for approval of reserved matters and ...
(b) planning permission is granted subject to conditions, the notice shall:(i) include a summary of their reasons for the grant together with a summary
of the policies and proposals in the development plan which are relevant to
the decision to grant permission; and
(ii) shall state clearly and precisely their full reasons for each condition
imposed, specifying all policies and proposals in the development plan which
are relevant.
5.14
The same requirement for the Authority to provide clear and precise reasons for each
condition imposed is now contained within para. 31 (1)(a)(iii) of the Town and
Country Planning (Development Management Procedure)(England) Order 2010,
which came into force on 1st October 2010.
14
Development Plan Policy
5.15
The development plan for Wychavon District currently comprises the West Midlands
Regional Spatial Strategy (WMRSS), ‘Saved’ Policies of the Worcestershire County
Structure Plan (2001) and the Wychavon District Local Plan ‘As Saved’. Structure
Plan Policy did not feature as a reason for refusal of the appeal application.
5.16
The Wychavon Local Plan was adopted on 23 June 2006. For the purposes of the
NPPF paras. 214 and 215, the Local Plan comprises a development plan document
adopted in accordance with the Planning and Compulsory Purchase Act, 2004.
5.17
Policy COM7 relates to Agricultural Workers’ and Other Rural Workers’ Dwellings
(Doc. 5/3). It indicates that permanent agricultural workers’ dwellings in the
countryside will only be permitted where 6 criteria, mainly based on the financial and
financial tests set out in PPS7 (as was applicable at the time) are met. In particular, it
states: “(e) the size and specification of the dwelling is reasonably related to the
functional requirement of the unit and appropriate in terms of scale and design to its
setting and surroundings” (Doc. 5/3). It also states that permission may be granted
subject to a s106 agreement preventing the severing of the dwelling from the holding
(Doc. 5/4).
5.18
Explanatory paras. 5.2.39 - .41 reiterate the requirement for the functional and
financial needs tests in PPS7 to be satisfied. (Doc. 5/4).
5.19
Para. 5.2.43 states: “The Council is keen to minimise future problems of affordability
of agricultural dwellings for agricultural wage earners and with therefore not accept
unusually large or expensively constructed dwellings that would be difficult to
sustain in the long term on an agricultural income. It is, therefore, generally
anticipated that the habitable accommodation (i.e. excluding garaging, but including
office space, for example) should not exceed 150 m2 in area (as measured
externally).” (Doc. 5/5)
5.20
Policy COM9 relates to Agricultural or Rural Workers’ Occupancy Conditions (Doc.
5/6). It states that occupancy conditions will generally be retained unless there has
been a change of circumstance such as in the defined development boundary (of a
15
settlement), or that the long-term need for the dwelling in the locality has ceased. All
of this pre-supposes that the condition was reasonably imposed in the first instance.
16
6.0
CASE FOR THE APPELLANT
6.1
When the replacement dwelling was granted permission in 2008, both national policy
(PPS7) and development plan policy (Policy COM7) required applications for
agricultural dwellings to be judged against identified functional and financial needs
tests to establish whether there was an essential need for a worker to live on site and
if the agricultural enterprise could sustain a dwelling of the size proposed.
6.2
In instances where both the functional and financial tests were met, planning
permission would be granted, as an exception to the strict policy of constraint that
normally applies to new housing within rural areas, subject to an occupancy
condition ensuring that the dwelling was kept available to meet the identified
essential need (para. 16 to Annex A of PPS7).
6.3
Nothing in PPS7 or the Local Plan suggested that occupancy conditions could be
transferred between dwellings without a re-appraisal of the relevant tests. Indeed
Annex A of PPS7 stated that it is essential that all applications for new occupational
dwellings in the countryside are scrutinised thoroughly. This would naturally have
included replacement dwellings.
6.4
Application W/08/01715/PN was patently not judged against these tests. This is
evidenced by the fact that no agricultural information was submitted or requested at
the time of consideration and the fact that the Officer’s Report makes no reference to
any assessment of the agricultural need for the replacement dwelling.
6.5
Furthermore, both national and development plan policy specifically required new
dwellings to be of a size commensurate with the financial and functional needs of the
enterprise.
6.6
On the appeal site, planning permission was granted for a dwelling of 323sq.m,
substantially larger than the one it replaced and the indicative figure of 150 sq.m
referred to in explanatory para. 5.2.43 to Policy COM7 (Doc. 5/5). The Design and
Access Statement that accompanied the application made clear that the scale of the
proposed dwelling was determined by the applicant’s need to ensure a return on his
17
investment and provide family accommodation (Doc. 3/5). No reference to the
agricultural needs of the holding were mentioned.
6.7
As was clear also from the Design and Access Statement (Doc. 3/5), from the preapplication advice offered the applicant and in the Officer’s report (Doc. 4/2) the
Officers determined the acceptability of the size of the replacement dwelling based
upon a formula that took into account the permitted development rights of the
original dwelling, resulting in a dwelling substantially larger than contemplated by
Policy COM7. No assessment however of the agricultural needs of the holding was
undertaken.
6.8
This was effectively endorsed by the comments of the Inspector in the dormer
window appeal in which he stated that that he is not satisfied that the replacement
dwelling related to Policy COM7 since there was: ‘limited evidence to show that its
size and specification is reasonably related to the functional requirement of the unit’.
(Doc. 6/3, para. 12).
6.9
Given that the application was not judged against the requirements in Annex A of
PPS7 and Local Plan Policy COM7, it was unreasonable to impose an agricultural
occupancy condition. It fails to meet the tests set out in Circular 11/95 on grounds of
necessity and reasonableness as I show below.
(i) Test of Necessity
6.10
Para. 17 of the Annex states: “In so far as a condition is wider in its scope than is
necessary to achieve the desired objective, it will fail the test of need”.
6.11
The Authority’s aim in imposing condition 4 is determined from the Reason for its
imposition, required by virtue the (Development Management Procedure) (England)
Order 2010 (and its predecessors) to be clear and precise. The reason for imposing
condition 4 is stated as: “The Council would not be prepared to grant consent for the
proposed development, unconnected with the use of adjoining land for agricultural
or similar purposes’.
18
6.12
This does not require the house to be restricted to occupation by an agricultural
worker. It may be tied to the surrounding land which should be in agricultural or in
use for similar purposes. The purpose of the condition can thus be more properly
achieved through the use of the unilateral undertaking that accompanies this appeal
(Doc. 1). That would also comply with Policy COM7.
(ii) Test of Reasonableness
6.13
Para. 34 of the Circular also indicates that a condition can be ultra vires on the
grounds of unreasonableness. The Officer’s Report in relation to the 2008 application
indicates that: “In accordance with policy COM7 the agricultural occupancy
restriction on the existing dwelling will be reapplied to the new dwelling”. (Doc.
4/4).
6.14
Nothing in Policy COM7 suggests that the condition could have been transferred
without reference to the appropriate financial and functional needs tests. Given that
the application was not judged against Policy COM7, at the least in terms of the need
for, or size of, the dwelling, it was unreasonable to impose the condition that cannot
be justified in terms of its compliance with this Policy.
6.15
The reason for refusing the appeal application states that the transfer of the
agricultural tie was in accordance with Saved Policies COM7, COM9 and GD1 of the
Local Plan (June 2006). GD1 (Doc. 5/2) is a Policy of general application, relating to
all developments. There are no provisions within these policies that allow for the
transfer of an agricultural tie without a reconsideration of the functional and financial
needs of the agricultural holding.
6.17
Likewise, the Council is misguided in claiming that the discharge of the condition
would undermine the policies of the Local Plan. There has been no analysis of
whether the same objective could be achieved by the unilateral undertaking in its
place as provided by Policy COM7. As I noted in para. 5.13 above, the Authority has
a duty to give reasons for imposing a condition. The Reason for imposing condition
4 is satisfied by the unilateral undertaking contained in Doc. 1.
19
6.18
Finally, the Reason for refusal states that the proposal fails to demonstrate
compliance with Policy COM9 in that the circumstances since the tie was imposed
have not changed and that no evidence has been submitted to demonstrate to the
Authority that the agricultural dwelling is not needed in the long term.
6.19
No evidence as to any agricultural need was submitted or requested to justify the
dwelling. As I understand the evidence of Mr. Rhodes, it would not have been
possible in any event at the time or since. Consequently I cannot see how the
Council can adduce that Policy COM9 is now breached.
6.20
The purpose of an agricultural occupancy condition is to retain dwellings to meet the
demonstrable agricultural need as an exception to the general policy of constraint that
applies within the countryside. The condition the subject of this appeal was
inappropriately applied in that an agricultural justification was never sought or
provided.
6.21
The replacement dwelling is patently of a scale and specification that is
disproportionate to an agricultural wage, a fact recognised by the Inspector in the
dormer windows appeal. This should be clear to the Council given the reference in
the Local Plan to agricultural dwellings not exceeding 150 sq.m in order to avoid
‘future problems of affordability’ (Doc. 5/1, para. 5.2.43).
6.22
In light of these considerations, the reason for refusing the appeal application is
spurious since it fails to take into account the unreasonableness of the condition in the
first place, the absence of any agricultural justification for the replacement dwelling
permitted by virtue of planning permission W/08/01715/PN and the fact that the
unilateral undertaking is an appropriate substitute.
20
7.0
CONCLUSIONS
7.1
My evidence is submitted on behalf of Mr. N. Spencer in relation to his appeal
against Wychavon District Council’s decision to refuse to discharge condition 4 of
planning permission W/08/01715/PN, which imposed an agricultural occupancy tie,
at Morton Spiert Farm, Abbots Morton.
7.2
The condition was imposed without any reference to the functional or financial need
tests set out in applicable national and development plan policy applicable at the time
necessary to establish if there is an agricultural justification for a dwelling in the
countryside.
7.3
Nothing within these Policies suggests that an application for the replacement of an
existing ‘tied’ dwelling is exempted from the need to assess the agricultural merits of
the proposal. The imposition of the agricultural occupancy condition on a dwelling
that had not been judged against the appropriate tests was therefore unreasonable.
7.4
The size and scale of the dwelling confirms that the application was never justified on
agricultural grounds. Its construction and maintenance would not be possible to
sustain on an agricultural income from Morton Spiert Farm, a fact recognised by the
Inspector in the dormer windows appeal.
7.5
The condition cannot be justified on grounds of necessity or reasonableness as set out
in Circular 11/95. Its intended purpose would be appropriately fulfilled by the terms
of the unilateral undertaking offered as part of the current appeal as it would tie the
dwelling to the land; being the Reason for imposing condition 4 in the first place.
7.6
In light of the ‘ultra vires’ nature of the condition and the lack of agricultural
justification for its imposition, its removal would not undermine the policies of
restraint that the Council seeks to exercise in countryside areas.
7.7
In the absence of any other material considerations, and in light of the unilateral
undertaking offered by the Appellant, the Inspector is respectfully requested to allow
the appeal and discharge condition 4 of planning permission W/08/01715/PN.
21