Property law reports

Town and country planning: CostsEnforcement notice - caravans - residential use - claimant's appeal against enforcement notice allowed - award of costs refused on basis that planning authority had acted reasonably in serving notice - whether planning inspector erred in law in refusing to make an order for costs in favour of claimant - section 320(2) of Town and Country Planning Act 1990 - section 250(5) of Local Government Act 1972 - application dismissedR (on the application of Leppard) v Secretary of State for the Environment, Transport and the Regions: Queen's Bench Division: Administrative Court (Mr Justice Forbes): 28 February 2002An enforcement notice was served on the claimant in respect of two caravans on his farm.

The claimant moved the caravans from one part of the farm to another, which allegedly changed the land use to mixed agricultural and residential use.

The claimant appealed.

At a public inquiry, the government inspector concluded that the appeal in respect of one of the caravans should succeed, on that basis that its use was immune from enforcement action because it had been on the farm for more than ten years.

In respect of the other caravan, the inspector decided to grant planning permission for its retention, subject to a condition relating to landscaping.

The claimant's application for costs was refused.

No challenge was brought with regard to the inspector's decision on the substantive appeal, but the claimant challenged the refusal to award costs.The respondent's policy on awarding costs was expressed in awards of costs circular 8/93, annex 3 of which stated that costs were compensatory and not punitive, and should be awarded in planning proceedings only where one of the parties to the action had acted unreasonably.Held: The application was dismissed.

The planning inspector had undertaken all necessary investigations before concluding that the planning authority had not acted unreasonably in issuing the enforcement notice.

Such a decision was rational and reasonable, and there was no substance in any of the claimant's criticisms.

An award of costs was an exercise of discretion, in which the inspector was best placed to judge not merely whether the evidence was well-founded in terms of the planning merits, but also whether a party had acted unreasonably: R v Secretary of State for the Environment, ex parte Ealing London Borough Council, 22 April 1999, unreported.The inspector, in stating his reasons, had to have regard to every material consideration; however, it was not necessary to mention them all.

The significance of the absence of reasons was that if all other known facts and circumstances pointed overwhelmingly in favour of a different conclusion, the decision-maker could not complain if the court drew the inference that he had no rational reason for his decision.

The costs decision letter identified the important issues, as they related to costs, and contained adequate reasons to support the inspector's decision.Simon Randle (instructed by Knights, of Tunbridge Wells) for the claimant; Timothy Morshead (instructed by the Treasury Solicitor) for the defendant.Landlord and tenant: Agricultural holdingAgricultural tenancy - open farming - tenancy of farm permitting use of land for agricultural purposes only - respondent tenant obtaining declaration that open-farming activities permitted - appellants contending such activities in breach of tenancy agreement - whether activities not substantially affecting character of permitted tenancy - whether open farming an agricultural purpose - sections 1(1) and (2) of Agricultural Holdings Acts 1948 and 1986 - appeal allowedJewell v McGowan and others: Court of Appeal (Lord Justice Mance, Mr Justice Park): 28 February 2002The respondent was the tenant and the appellants were the landlords of an organic dairy farm in Gloucester.

The tenancy agreement made reference to the Agricultural Holdings Act 1948 and provided, in clause 22, that the tenant would use the holding 'for agricultural purposes only'.

The tenant operated the holding as an open farm, which the public was permitted to visit, and which generated a substantial part of his income in that way.The tenant ceased the open-farming activities after the landlords asserted that such activities breached clause 22.

He later sought to resume open farming, and, to that end, sought a declaration that those activities would not be a breach of the tenancy agreement.Section 1(1) and 1(2) of the 1948 Act defined an agricultural holding as one comprising 'land used for agriculture'.

The same section of the Agricultural Holdings Act 1986, which gave effect to the way the 1948 Act had been interpreted in the courts, stated that a tenancy was an agricultural tenancy if 'the whole of the land...

subject to such exceptions as do not substantially affect the character of the tenancy, is let for use as agricultural land.'The judge found that if open farming were resumed, the tenancy would continue to be an agricultural holding within the meaning of both Acts, since the primary agricultural use would not be substantially affected by the open-farming activities.

He considered that those activities would be purely ancillary in nature.

He held that clause 22 was intended to mirror the effect of the Acts, and found, accordingly, that open farming would not amount to a breach of the tenancy.

He further held that the open-farming activities could in any event be described as agricultural, since they were essential to the profitability of the farm.

He granted the declaration sought.

The landlords appealed.Held: The appeal was allowed.The draftsman of the tenancy agreement had had the 1948 Act in mind, but that did not mean that there was any equation between the scope of application of the Acts and the scope of activity permitted by clause 22 of the agreement.

The judge had erred in treating the requirement in clause 22 to use the land 'for agricultural purposes only' merely as a paraphrase of the provisions of the Acts.

Clause 22 was essentially different from the statutory provisions, not just in terminology, but in spirit.

To use land 'in substance' for particular purposes gave greater freedom than a requirement to use it 'only' for those purposes.

The wording of clause 22 excluded any exceptions to the agricultural use, even where they did not affect the character of the tenancy.

The clause did not have to be read in any extreme or unreasonable sense, and it could be said to permit activities that were truly peripheral, or minimal: Honiton & District Agricultural Association v Wonnacott (1955) 166 EG 96 considered.Although agriculture was the primary activity on the farm, and the additional open-farming activities depended upon it, open farming nonetheless constituted a distinct activity for separate, non-agricultural purposes.

It could not be said to be merely ancillary.

The open-farming activities amounted to a separate commercial enterprise, with the purposes of educating the public, promoting organic farming and farm produce, and thereby making a profit.

The fact that such activities might indirectly benefit the agricultural activity, by raising money to put back into the farm and increasing the likelihood of the public buying organic produce, did not affect that conclusion.

The open-farming activities were not agricultural in nature, and did not become so by virtue of the fact that they were essential to the profitability of the farm.

It followed that the declaration granted by the judge should be set aside.Mark Wonnacott (instructed by White & Bowker, of Southampton) for the appellants; William Batstone (instructed by Burges Salmon, of Bristol) for the respondent.