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Site visits: Monday 17 March 2014 Inquiry: Tuesday 18 March 2014
agricultural worker (active or retired) but could be a farm owner or agricultural business, only provided that the occupants fall within the scope of the tie. There have been a number of approvals for agricultural worker dwellings since 2007 within a couple of miles of Three Acres and one or two currently pending. The dwelling was permitted for agricultural rather than housing needs and should not remain other than in compliance with its purpose. 3. The Planning Officer's report recognises that the dwelling would not have been permitted without an agricultural occupancy tie, and the Agricultural Advisor's input appears to recognise a continuing need for such accommodation in the locality. There was, presumably, some evidence of agricultural need at the outset, and the applicants' professed ignorance now of the occupancy condition's existence is neither credible nor relevant. Nor is it relevant whether they were asked if they agreed to the condition. It was their choice whether or not to implement the original permission as approved. A comparison between the approach now and that with respect to the preceding, refused, application suggests that personal sympathy has clouded planning merits. 4. The Planning Authority: the overarching consideration is whether the applicants (Mr and Mrs Cain) provided sufficient evidence to demonstrate that there is no long-term need for a farm worker's dwelling here or in the locality. They made the following points. 5. Now in their 80s, they are finding it ever more difficult financially and physically to maintain the bungalow and aim to sell at open market price as this would then help them find assisted facilities to meet current and future needs. When the application was initially approved, in 1979, the dwelling was not connected to an existing or proposed farm holding. In all they owned 3 acres at the site and rented a further 22 acres of hillside above Baldwin Reservoir. They did not apply for a dwelling with an agricultural tie, which was subsequently added as a condition of the approval. Rightly or wrongly, they had assumed that the Committee had assessed their application against then extant planning policies, knew the circumstances behind the application, and were aware that there was no associated farm holding or substantial parcel of farmland. With or without the occupancy tie the applicants had had little option other than to implement the approval since they had been given notice to leave the Ballavargher Estate where they had lived and farmed for many years. 6. The 2005 refusal to lift the occupancy tie had had regard to comments by DAFF (now DEFA) in 1979 regarding the initial application, which referred to Mr Cain's then substantial involvement in agriculture. Although correct, the assessment appears to have neglected to take account of the fact that he would largely lose those opportunities on leaving the Estate. Both Mr and Mrs Cain soon had to find new jobs outside agriculture (Mr Cain as a gardener at Ballamona Hospital from 1979 to 1994) given the small income generated by their flock kept above the reservoir. For these reasons the applicants assert that the initial permission was not for a justified agricultural worker's dwelling. 7. Subsequently, in 1984 and 1985 adjacent parcels of land became available increasing their ownership by about 17 acres enabling Mr Cain for many years to indulge his hobby of sheepdog training and competing. The hillside land was relinquished in 1999 as becoming too difficult for him and in 2005 he sold his flock and let the 17 acres to a Mr Quayle at the nearby Glenlough Farm. 8. The Planning Authority would today have concerns regarding granting approval for an agricultural worker's dwelling on this isolated site, because of its limited associated land and lack of any evident connection to a viable, full time agricultural enterprise. The 1979 records are limited but record: "Applicant is a tenant farmer
at Ballavargher but farm was sold and the bungalow would be alternative accommodation for applicant who will be carrying on farming activities in a limited fashion" before concluding that "There appears to be a reasonable case for approving this application, but this cannot be tied to farmland in the usual sense." 9. There is no evidence of whether the occupancy conditions were discussed with the applicants and on the available evidence they appear to have been added on approval by the then Director of Planning. It is difficult for the applicants to prove that there is no longer a long-term need for the dwelling, especially on a particular farm, as it was never connected to a viable, full-time holding from the outset. In contrast, the applications cited by the Commissioners were connected to farm holdings, and it should be borne in mind that agricultural necessity requires more than a demonstration of labour needs on a full-time viable farm but a functional need to live in proximity, for example, to tend livestock as required. 10. The applicants have referred to holdings in the locality that are no longer farmed by a resident farmer if at all. The Agricultural Advisor has listed farms within 2 km together with their residential accommodation, identifying 3 or 4 as those most likely to have a demand for an agricultural dwelling, concluding that "I think there is likely to be little demand for this dwelling from the farming community should it be placed on the open market. Although if it was more affordable by a farm worker, I suspect there may be a lot more interest." Generally the Planning Authority requires that demand be tested by marketing for at least six months at a discount of 25-30 % below open market value. This approach is, however, becoming increasingly problematic with increasing property prices: a recent professional market valuation of Three Acres was £ 425,000, which even so discounted would likely to be unaffordable to an agricultural worker. A reappraisal of the approach generally has been initiated within the Planning Division but is yet to conclude. 11. The preceding application to remove the tie was refused for lack of convincing evidence. On the current information there is no longer a long-term need for the property either on the holding or in the locality. 12. The Applicants (Mr and Mrs Cain) had not expected to attend, because of Mr Cain's health, but in the event were able to do so with support by family members although they largely relied on the Planning Officer to defend the issued decision. They had been aware at the time of the occupancy tie, even though they had not made such an application, but had no choice other than to proceed as they were to lose their home and tenanted farm of many years and needed somewhere suitable for themselves and their sheep dogs. The wording of the conditions implied that these were open to further consideration in due course by the Planning Committee.
Policies 7, 8, 9, and 10 which, in brief, require real agricultural need, an occupancy condition, location within or adjoining the relevant farmstead, and an appropriate building design. Paragraph 8.9.4 advises that occupancy conditions will not usually be removed unless it is shown that the long-term need for dwellings for agricultural workers, both on the particular farm and in the locality, no longer warrants reserving the dwelling for that purpose.
As discussed at the inquiry hearing, it seems probable that a broadly similar policy framework was in place in 1979 but perhaps less meticulously applied. Be that as it may, it is clear that the approval for what became Three Acres was not objectively justified by agricultural necessity: as its name suggests there was just a small area of associated land, and nothing that could reasonably be described as a farm holding or enterprise. Mr. Cain continued and progressed what was acknowledged to be at best his paying hobby, training, and demonstrating sheep dogs, however neither he nor Mrs. Cain remained employed in agriculture to any significant extent. As also discussed, it must I think be a moot point whether their occupation of Three Acres does in fact meet the requirements of Condition 5.
The UK courts and past governments have established that a valid planning condition must be: necessary; relevant to planning; relevant to the development being permitted; enforceable, precise, and reasonable in all other regards. The Planning Officer confirmed that these same six tests are similarly applied on the Island. Microfiche records are scant, but it does seem clear that the approval was motivated in response to housing needs for Mr. and Mrs. Cain and their family following a loss of employment, and with it tied accommodation, on a nearby rural estate. Such thinking was once not uncommon in rural planning decisions, assisting families with strong local farming connections to remain in a locality in the face of changed circumstances which no longer gave rise to agricultural necessity. Whether or not this was wise by 1979, in the face of increasing car ownership and development pressures on the countryside, it was nonetheless the outcome, and there is nothing to suggest that the application was made other than openly, in good faith, and with no attempt to give a misleading impression of agricultural justification.
The occupancy condition appears to have been added almost as an afterthought, but with no justification; it could not be said to have been necessary and although relevant to planning it was not relevant to what was being permitted. The clear absence of an agricultural justification also made it unreasonable. What was evidently, at least from a strict perspective of planning policy, a dubious approval did not become less so for adding irrelevant and unreasonable planning conditions. In short, I consider that the conditions were invalid when first imposed and they remain so. A marketing exercise at any level of discount or duration would not overcome this conclusion.
The approval now subject to appeal rectified a long-standing mistake, and it would be wholly disproportionate and unreasonable instead to seek to have the building demolished as implicitly suggested for the Commissioners. My conclusion derives from the very particular circumstances relating to this case and should not be interpreted as having application elsewhere with regard to agricultural workers' rural dwellings proposed or existing.
This approval relates to the removal of agricultural worker's occupancy conditions (4 & 5 of planning applications 48075 and 48788) from dwelling (Three Acres) detailed within the current planning application. The effect of this approval is to allow the occupation of the dwelling without restriction.
Alan Langton
Inspector
Inquiry Attendance
Mr Ian Maule Mr Ronnie Cain Mrs Olive Cain Mr Paul Cain Mrs Joanne Cowin Mr Adrian Cowin Mr Chris Balmer
Clerk to Marown Parish Commissioners (Appellants) Applicant Applicant Applicants' son Applicants' daughter Applicants' son-in-law Planning Officer
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