Inspector's Report

Appeal No: AP14/0017

Application No: 13/91108/C

Report on Inquiry into Planning Appeal

Inquiry held on: 11 June 2014

Site Inspection held on: 9 June 2014

Appeal by:

Hospice, Isle of Man, against refusal for removal of condition 5 of Planning Approval 50777 (restriction on occupancy), 'Westfield', Grenaby Road, Dogmills, Ramsey, Isle of Man IM7 4AN

Present:

• Miss J Raleigh - on behalf of the Appellant
• Mr R Jelski - on behalf of the Appellant
• Mr E Baker - Planning Authority

Introduction

1. This report provides background information, matters of clarification and the planning history; a description of the appeal building, its site and surroundings; the proposal and relevant policy considerations. The cases for the parties are then summarised, fuller details being available for reference in the documents on the case file. My assessment, conclusions and recommendation follow.

Background information, matters of clarification and planning history

1. The property was bequeathed to the appellant (Hospice Isle of Man) by the former owner, Mr Corlett (now deceased) and the stated intention is that the proceeds of the sale are taken into the charity's operating accounts.

1. When making the application (Ref: 13/91108/C dated 19 September 2013) it was referred to as being 'for the restrictive covenant upon the above property to be released'. However, it is evident that this was an application for removal of condition No 5 of a previous planning approval in principle (50777) for a domestic dwelling which was granted conditional approval, on review, on 4 February 1980. The initial condition No 5, which was attached to Approval 50777, was the standard agricultural worker's restrictive condition. However, the Planning Committee agreed to an amended wording of condition No 5 and this was confirmed to the applicant in writing on 19 April 1980. The wording of the condition as amended is set out in paragraph 6 below and is the subject of this appeal. The appeal is, therefore, for the continuation of the development (the dwelling house permitted) without complying with condition No 5. This was agreed at the start of the Inquiry and it is on this basis that I have dealt with the appeal and made my recommendation.

1. Approval 50777 was implemented in 1981, following the granting of approval of the Reserved Matters. In the circumstances of this application/appeal the original permission is not at risk. Section 10(3) of the Town and Country Planning Act 1999 states that 'any person interested in land to which planning approval has been granted subject to conditions may apply to the Department for the variation or discharge of conditions, and on such application the Department may (a) vary or discharge the conditions, and (b) add new conditions consequential on the variation or discharge. Section 10(3) of the Act and Articles 8 and 13 of the Town and Country Planning (Development Procedure)(No2) Order 2013 cover appeals regarding the variation or discharge of conditions. In such cases if an appeal to

Appeal No AP14/0017

Application No 13/91108/C

Remove a condition is successful the appeal is allowed and a new planning approval is created. If the appeal is unsuccessful the appeal is dismissed and the condition remains in place.

1. The Minister also has the power to remove the appealed condition and to add a new condition to the previous approval (50777) consequential to the discharge of the disputed condition. This option was made clear to the parties and was discussed in detail during the course of the Inquiry. The new condition discussed was as follows:

> 'The occupation of the dwelling approved under application 50777 shall be limited to a person engaged or last engaged solely in agriculture on the Isle of Man or a widow or widower, of such a person or any resident dependants. It was not considered that any other new conditions would be necessary or appropriate if this was the option/decision to be followed.

1. In effect, therefore, the appeal is made against a refusal to grant approval for the use of 'Westfield' without complying with an agricultural occupancy condition subject to which the previous planning approval was granted in 1980 (Ref 50777). The appealed condition (no 5) is worded as follows:

> 'The occupation of the proposed dwelling must be limited to the applicants Mr and Mrs Corlett and the survivor of them or other, the owners or occupiers for the time being thereof or if the proposed dwelling is let to persons whose employment or latest employment is or was employment in agriculture in the Island and including also the dependants of such persons as aforesaid and such tenancy must be subject at times to enquiry and approval by the Committee'.

1. The wording of condition 5, as set out above, was not the original wording in the approval notice (see paragraph 3 above). The original wording was based on the normal agricultural worker's condition that restricts the use of such a dwelling to 'a person engaged or last engaged solely in agriculture on the Isle of Man or a widow or widower, of such a person or any resident dependants'. At the Inquiry it was confirmed, by the appellant's legal representative (and one of the Trustees for the Corlett estate), that the Committee had specifically changed the wording because there was a wish to make the approval personal to Mr and Mrs Corlett.

1. It must have been considered by the Committee that, in the particular circumstances and for whatever reason, the standard condition was not appropriate. The planning officer's recommendation in 1980 was to refuse the application but it was allowed by the Planning Committee 'on review' and there appears to be nothing on file which explains the reasons for the decision. The current Planning Officer could not find any specific reference as to why the Committee at that time had agreed to the amended wording of condition 5. However, the fact that Mr Corlett was a retired farmer is clearly central to the reason for approval being granted and the appellant and the Trustees accept that approval would not have been granted in 1980 if Mr Corlett had not been a retiring farmer from Ballavarteen Farm.

1. The condition was repeated in the detailed 1981 'reserved matters' approval as condition No 6. A further condition made the approval personal to Mr and Mrs Corlett and indicated that it would not be capable of re-assignment without the Committee's permission and, 'in the event of their death, any renewal thereof would enure for the benefit of their estate'. Following the deaths of Mr and Mrs Corlett this appears to mean that the permission is not capable of being re-assigned without the permission of the Planning Committee but that any renewal would enure, or take effect, for the benefit of their estate.

1. The approval for the dwelling was on the basis that it would provide accommodation for Mr Corlett. On the 1980 application form (dated 2 October 1979)

Appeal No AP14/0017

Application No 13/91108/C

for approval in principle (50777), it was stated that: 'The applicant is a Farm Worker due for retirement living in a tied cottage. He has been given the opportunity of purchasing a portion of the said field to enable him to build his own house to live for his retirement days'.

1. The application (now subject of this appeal) for the removal of condition 5 was dated 18 September 2013 (Ref 13/91108/C) and it was refused by notice dated 28 February 2014, for the following reason:

'Insufficient evidence has been submitted to demonstrate that the property is no longer required for occupation by an agricultural worker in the island. Accordingly the removal of the agricultural workers condition is insufficiently justified. The proposal, therefore, fails to accord with policies in the Isle of Man Strategic Plan 2007 that seeks to control development in the countryside, having particular regard to paragraph 8.9.4 which states that agricultural occupancy conditions should "not usually be removed on subsequent applications 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".

1. The application to remove the condition was originally referred to the Planning Committee on 13 January 2014 and the officer's initial recommendation was to refuse the application. However, on the advice of the planning officer, the Committee deferred the decision so that the planning history of the site and the specific wording of the condition No 5 could be examined in more detail. The Planning Officer concluded that the condition in question was imprecise and unenforceable and indicated that the wording was 'wholly unclear'. The professional view of the Planning Officer was endorsed by the Attorney General's Chambers. The application to remove the condition was re-assessed and a revised report was presented to the Committee. In this revised report (dated 10 February 2014) the officer recommendation was to approve the application.

1. However, the Planning Committee met on 24 February 2014 and resolved to refuse the application to remove condition 5 of the approval in principle (50777), contrary to the planning officer's recommendation (see reason for refusal above). On a file report dated 26 February 2014, the officer notes that at the Committee meeting there had been detailed consideration of the wording of the condition and whether or not it was precise, reasonable and enforceable. It is also noted by the officer that the committee's overriding concern was about 'the loss of an agricultural worker's dwelling that could otherwise be made available to the agricultural community'.

1. Three applications have been refused in the past for change of use and removal of the agricultural tie (condition No 5). These refusals were in 1997 - 96/00802/C - (change of use from agricultural dwelling to private residence); 2004 - 04/00532/C - (removal of agricultural tie) and 2008 - 08/00821/C - (removal of agricultural tie). The 2008 refusal related to insufficient evidence being provided to demonstrate that the property is no longer required for occupation by an agricultural worker on the island. A note was attached to the 2008 refusal which was as follows:

'The Department's established practice in these matters is to require that the dwelling should be offered for sale for a period of 6 months at a valuation which reflects the limitation on occupancy imposed by the current planning approval; there would usually be a reduction in the free market value of approximately 25 - 30%. The applicant is recommended to market the property at this discounted rate for a period of 6 months. If, after that period the house is still on the market then the applicant is recommended to submit a further application with the relevant evidence'.

1. In relation to the 1996 application the Society for the Preservation of the Manx Countryside and Environment (SPMCE) wrote to the Planning Committee (see letter on file dated 11 September 1996) pointing out that this was an unusual case in that the condition was a personal one based on an 'Agreement' rather than being the usual agricultural condition. It referred to the 'Agreement' having a 10 year life and that it therefore would have expired in 1990, but no further evidence in this respect was submitted to the Inquiry. However, condition No 4 to Approval 50777 reads as follows: 'The proposed dwelling must not be sold from the date of the approval to 4 February 1990 without the prior written consent of the Committee and a written undertaking must be submitted and approved by the Cttee (sic) prior to the commencement of any building works'. This would mean that after 4 February 1990 it could be sold without Committee approval.
2. The Planning Authority's appeal statement (dated 8 April 2014) confirms its current position as being that, in accordance with the Committee decision, the appeal should be dismissed and that the application to remove condition No 5 of planning approval 50777 should be rejected for the reasons set out in the original Committee Report on 13 January 2014 (see gist of Planning Authority case below). This report to committee refers to the appeal application as having included particulars of sale and that the applicant's estate agent had indicated that the property had been marketed since December 2010 at discounted figure of $£ 325,000$. This is stated to be $20 \%$ below market value and would make the open market valuation at that time $£ 406,250$. The highest offer to date is $£ 260,000$ (see cases below) which would represent a discounted figure of $36 \%$ of the $£ 406,250$. The adjacent field (111276) was offered as an option for an extra $£ 25,000$ but is not part of the application/appeal site. However the property has remained unsold.

The Appeal building, its site and surroundings

1. The appeal building 'Westfield' is a small, two-bedroomed, detached bungalow with garage located in the open countryside on the south west of Grenaby Road, and to the west of The Dogmills, Ramsey. It has rendered grey walls and a grey tiled roof. The occupancy of the dwelling is restricted in accordance with the disputed condition No 5 (see paragraph 2 above), the removal of which is the subject of this appeal.
2. The house lies to the north west of Bailavarteen Farm and the adjoining field to the south (111376) is around 1.18 acres ( 0.28 hectares) in area. A concrete driveway gives access from the road and there is a hard standing which provides sufficient space to turn a vehicle. There are lawned gardens to either side and to the rear of the dwelling. The bungalow is one of several dwellings and farms spaced out along this rural country lane and it is surrounded by farmland. The appellant indicates that, at the time that the parcel of land was transferred to Mr Corlett it was not connected to any farming enterprise in the locality and the house has never been occupied by a working farmer.

The Proposal

1. What is proposed is for the bungalow at 'Westfield' to be used as a dwelling without complying with the condition No 5 as worded and set out in paragraph 6 above. The proposal is to have the agricultural occupancy condition (or agricultural tie) removed and this means that what is being sought by the appellant is a dwelling house in the countryside which is unrestricted in terms of occupancy.

Relevant Policy considerations

1. The site is unzoned in the Isle of Man Development Scheme (Development Plan) Order 1982 and, therefore, is classed as being within the open countryside. Spatial

Policy 5 (Sp5) of the Isle of Man Strategic Plan 2007 (IOMSP) is relevant and relates to new development having to be within defined settlements and, within the countryside; development is only allowed in accordance with General Policy 3 (GP3) of the IOMSP.

1. Policy GP3 sets out exceptions whereby development can be permitted outside of zoned areas and includes 'essential housing for agricultural workers'. This policy was not in place in 1980 but a similar policy existed and the Planning Committee at that time must have considered that the proposal to build a dwelling house for occupation by a retired farm worker either met the necessary criteria or that an exception to normal policy was relevant. The appeal condition was attached to the approval in principle (50777) as well as to the detailed permission granted approval in 1981. This in itself was not normal procedure since all of the conditions relating to the principle of the development approved should have been imposed at the 'in principle' stage rather than at 'reserved matters' stage.
2. In relation to agricultural workers' dwellings today, the IOMSP (paragraph 8.9.2) indicates that agricultural need should be established having regard to what has been built on the farm in the past; who will occupy the building and what role they play on the farm. It indicates that in some circumstances there will be a need for a dwelling for a retired farmer who proposes to vacate a main farmhouse but to continue to assist on the farm.
3. In this case the proposed dwelling for Mr and Mrs Corlett was not related to any farm; it was granted approval on an open countryside site; Mr Corlett did not vacate the main farmhouse at Ballavarteen and he did not continue to assist on the farm. He retired, built 'Westfield' and occupied the dwelling house which had never been tied to any specific farmland. The only reference to an 'agricultural tie' was in part of the wording to condition No 5.
4. There had never been any intention for Mr Corlett to continue to work in agriculture at Ballavarteen or any other farm. When the Planning Committee granted approval in 1980 they did so with the full knowledge that Mr Corlett had retired. The Committee did not impose the then standard agricultural tie condition and in making the occupancy personal they must have considered that the circumstances were exceptional.
5. Today, 'new agricultural dwellings' will only be permitted in exceptional circumstances and where real agricultural need is demonstrated. Paragraph 8.9.3 sets out criteria which are to be considered in judging whether the need is sufficient to over-ride other policies. These criteria would not have been in place in 1981 and at that time there would have had to have been exceptional circumstances to justify a dwelling in the open countryside.
6. Housing Policy 8 (HP8) of the IOMSP indicates that 'Where permission is granted for an agricultural dwelling, a condition will be attached restricting the occupation to a person engaged or last engaged solely in agriculture; or a widow or widower of such a person or any resident dependents. There was a similar condition used in 1980 but at that time the wording was altered (to read as condition No 5) to suit the situation regarding Mr and Mrs Corlett.
7. Paragraph 8.9.4 states that such a condition 'will not usually be removed on subsequent applications 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'.

Case for the Planning Authority

1. The gist of the case for the Planning Authority is as follows:

• The appeal should be dismissed.
• The Planning Committee is entitled to make a decision contrary to the planning officer's recommendation.
• The disputed condition is considered by the Committee to be valid and was sufficiently clear, precise and reasonable in all other respects.
• On the assumption that condition 5 is a valid condition there is no planning case to justify its removal from permission 50777.
• The appellant has failed to demonstrate that the dwelling is no longer required for occupation by an agricultural worker in the Island.
• An offer ( $£ 260,000$ ) was made to purchase the property in September 2011 by a Mrs H Mason. This is said to have been withdrawn due to difficulty in getting a mortgage due to the condition being attached.
• A second offer ( $£ 250,000$ ) by a Mr Glaister was also withdrawn.
• The very reason for the dwelling was to serve an agricultural need (for a retired farmer) and not as a general or speculative housing development.
• There is no evidence to support a discounted valuation of $£ 325,000$. Despite requests for clarification from the applicant/appellant there is no detailed valuation evidence and there is no evidence that specialist agricultural press was used to advertise the property.
• In a previous appeal decisions an Inspector indicated (11/00908/C) that 'a sustained and realistic marketing campaign is necessary targeting those who might comply with the condition'.
• In a second (08/00463) the Inspector indicated that the 'marketing should commence at a low base' and that if multiple offers are made then the price could be raised until there was a 'winning bid'.
• There is contradictory evidence regarding the offers made to purchase the property. Mr Glaister states that his offer was simply not accepted and it would appear that there was a third offer by the occupier of Cronk Aalin Farm.
• Although not currently connected to a working farm it is still available to the wider agricultural community. Occupancy by an agricultural worker would avoid the need for a new dwelling elsewhere.
• The need for tied agricultural property in the long term needs to be robustiy tested. The site is within the open countryside and the appellant has not shown that the condition attached to the previous permission is no longer warranted or that there is no agricultural need for the dwelling.

Case for the Appellants

1. The gist of the case for the Appellant is as follows:

• The 2013 application (13/91108/C) was supported by the Planning Officer's Report and Recommendation.
• The condition in question is unenforceable and the Planning Officer referred to it as follows: 'the wording is wholly unclear'.
• The view of the Planning Officer, endorsed by HM Attorney General's Chambers is that the condition is imprecise, unenforceable and should be removed.
• The Planning Committee has ignored the advice given with regard to the validity and enforceability of the condition and has simply applied the principles which would be applicable if the condition was valid and enforceable.
• In the alternative 'Westfield' has been on the market for sale since 2010 and has only received minimal interest during a very weak market period.
• It has been offered for sale at a realistic price considering the planning issues.

• The offer from the owners of 16 Killeaba Mount, Ramsey has not been accepted by the Trustees on the basis that the offer is too low and there is no proof that the bidder could satisfy the planning condition if the same is upheld. The Trustees have a duty to achieve a fair and reasonable price.
• Neither the Trustees nor the appellant are interested in the suggested 'property swop'.
• 'Westfield' is not and never has been tied to any particular farm and has never been occupied by an active agricultural worker.
• The property should be freed from a condition which was defective initially. The condition should be removed and the true situation should be recognised by allowing the appeal.
• The property is unsaleable with the condition attached. After 3 years of marketing there has been no interest by nearby farming businesses for use by any agricultural worker.
• If the condition is not removed it is unlikely that Mr Corlett's wishes will be met and the Hospice certainly needs the funds from the sale of the property in order to continue offering the patient care and family support to Islanders.

Other Parties

1. Bride Parish Commisioners made no response to the application.
2. The occupier of Crook Aalin Farm, Lezayre objected to the application to remove the condition on the basis that the price for a small bungalow is too high; an offer was made on the agricultural value but rejected; the property would sell with the tie if the price was appropriate and if it was not for the tie the dwelling would not have been allowed in the first instance.
3. The occupier of Killeaba Mount, Ramsey objected to the application to remove the condition on the basis that; they fit the criteria for living in an agricultural property and yet an opening offer of $£ 250,000$ was rejected as was an exchange of the property; the property is saleable with the tie if the vendor had been realistic about the price; the valuation of $£ 360,000$ is unrealistic given that a cottage in Ballaugh of similar size was on the free market for only $£ 285,000$ and that there remains an interest in purchasing the property for a realistic price.
4. The occupant of 33 Ballaquark, Douglas, although having no direct interest in the application considered at the application stage that 'it could be an interesting precedent'.

Assessment and conclusions

1. The main issues relate firstly to the validity of condition No 5 on Approval 50777 and, secondly, whether or not, in the particular circumstances of this case, it is appropriate to allow the use of 'Westfield' as a dwelling house in the countryside without complying with the normal agricultural tie condition. This is a most unusual and exceptional case. However, the appellant's arguments regarding the removal of the agricultural tie and the Planning Committee's stance on seeking, in principle, to retain such a tie are finely balanced.
2. I turn firstly to the disputed condition itself and what, in my view, it sought to achieve. During the course of the Inquiry the wording of the condition was discussed in detail. Based on the comments by the parties and having carefully studied the wording of the condition, I consider that it sought to restrict occupation of the new dwelling to Mr and Mrs Corlett (on the basis that Mr Corlett was a retired farmer) and/or to a tenant who met the normal agricultural worker's condition criteria. Whether or not the condition was legal in the first instance is a matter for the courts

but, in relation to what the condition was aiming to achieve, I set out my own interpretation below.

1. The first part is clear: 'The occupation of the proposed dwelling must be limited to the applicants Mr and Mrs Corlett'. This limited occupation to Mr and Mrs Corlett and was a personal condition and not a standard agricultural worker's dwelling condition. The next 7 words 'and the survivor of them or other' simply does not make sense. I return to these words later. The words 'the owners or occupiers for the time being thereof' must have referred back to Mr and Mrs Corlett, since they were the owners or occupiers when the application was made and for whom the house was built.
2. The words; 'or if the proposed dwelling is let to persons whose employment or latest employment is or was employment in agriculture in the Island and including also the dependants of such persons as aforesaid and such tenancy must be subject at times to enquiry and approval by the Committee'; are also confusing and seem incomplete.
3. However, in my view, it appears to mean that, as well as limiting occupation to Mr and Mrs Corlett, if the property was to be let (presumably by Mr and Mrs Corlett or their successors in title), the condition limited the letting of the property; 'to persons whose employment or latest employment is or was employment in agriculture in the Island and including also the dependants of such persons as aforesaid and such tenancy must be subject at times to enquiry and approval by the Committee'.
4. Therefore, occupation of the dwelling house approved appears to be restricted either to Mr and/or Mrs Corlett or, if let, to an agricultural worker or someone who had retired from agriculture (or their dependents). On their deaths (and with the Hospice now being the owner), if the condition as worded were to be complied with, the occupancy would appear to be restricted to a tenant or tenants who meet the agricultural tie criteria. The condition clearly does not cover the situation with regard to the sale of the property on the deaths of Mr and Mrs Corlett.
5. However, the condition in the detailed approval made the approval personal to Mr and Mrs Corlett and indicated that the permission would not be capable of reassignment without the Committee's permission and, 'in the event of their death, any renewal thereof would enure for the benefit of their estate'. Following the deaths of Mr and Mrs Corlett this means, in effect, that if this condition is to be complied with the permission is not capable of being re-assigned without the permission of the Planning Committee and that any renewal would enure (or take effect) for the benefit of their estate.
6. On the words which do not make sense ('and the survivor of them or other'), it is my view that this is some form of typographical error and omission and could only have meant that occupation was limited to Mr and Mrs Corlett together and to whichever of them survived the other. On the balance of probabilities, therefore, I consider that, in effect, the condition meant that:

'The occupation of the proposed dwelling must be limited to the applicants Mr and Mrs Corlett' and to the survivor of one or other of them or, if the proposed dwelling is let, to persons whose employment or latest employment is or was employment in agriculture in the Island and including also the dependants of such persons as aforesaid and such tenancy must be subject at times to enquiry and approval by the Committee'.

1. Clearly a true interpretation of the wording would be matter of law but in summarising the situation so far, there can be no dispute that approval would not

have been granted for an unrestricted dwelling house in the open countryside and that the principle of the condition was to restrict occupancy to Mr and Mrs Corlett or to a tenant who met the normal agricultural tie condition. I now turn to the validity of the condition.

The matters relating to the validity of condition No 5

1. The six tests for any planning condition are:
2. Whether it is necessary;
3. Whether it is relevant to planning;
4. Whether it is relevant to the development to be permitted;
5. Whether it is enforceable;
6. Whether it is precise and
7. Whether it is reasonable in all other respects.

1. In the report to Committee dated 24 February 2014 the Planning Officer had recommended approval of the application to remove condition No 5. Amongst other matters the report indicated that, in the opinion of officers, the condition was imprecise and unenforceable and, therefore, no longer valid. This opinion was endorsed by the Attorney General's Chambers.

1. Taken on its face and with the wording used, if attached to a planning approval today, it would not meet all of the above tests and would not be valid. Whilst accepting that there was no dispute that planning approval was only being granted because Mr Corlett was a retired farmer and that an unrestricted planning approval for a dwelling in the countryside would not have been granted at that time, the standard agricultural tie condition was not imposed.

1. When the condition was attached to approval 50777, if the Committee considered that the principle of an agricultural tie was considered to be necessary then the standard condition should have been imposed. Such a condition would have met the tests of being necessary, relevant to planning and relevant to the development to be permitted. It could be argued, but only in principle, that the alternatively worded personal/part agricultural tie condition could meet the first three tests.

1. However, on the fourth test, I consider that the condition would have been difficult to enforce. It was not precise enough and although the parties accept that approval would not have been granted if Mr Corlett had not been a retired farmer and other applications to remove the condition had been made, condition No 5 was never challenged in the courts. The legality of the condition has not been tested and I do not consider that enforcement action could have been justified and could, in itself, also have been legally challenged.

1. In terms of its precision, I agree with the Planning Officer and the Attorney General's Chambers that the condition is 'imprecise' and that the wording is 'wholly unclear'. I also consider that it is 'unreasonable in all other respects' due to the fact that, since the deaths of Mr and Mrs Corlett, it would appear that occupancy of Westfield is now limited only to a tenant who meets the 'agricultural tie' condition. It is also unreasonable because the Committee did not impose the standard restrictive condition. Furthermore, although the Committee's overriding concern was stated to be related to the loss of an agricultural dwelling, it had never been occupied as such. In effect it had been occupied by Mr and Mrs Corlett on an unrestricted basis, albeit with requirements that Committee approval be sought if it was sold within 10 years of the approval and that it could only be let to someone who met the agricultural tie criteria.

1. I consider that the condition is also unreasonable because the assignment of the permission is not allowed without the Committee's permission and, 'in the event of

their death, any renewal thereof would enure for the benefit of their estate'. The estate would, therefore, be limited to letting the property on the basis of the agricultural tie and it would follow that any successor in title would have to comply with the condition. It follows that the condition does not meet the six necessary tests; it was invalid when imposed and it would be invalid today. Irrespective of whether or not another condition should be attached (see below), I conclude, therefore, that condition 5 should be removed from the approval in principle (50777) granted in 1980.

1. I have referred above (paragraph 3) to the power for the Minister to remove the appealed condition and to add a new/another condition to the previous approval consequential to the discharge of the disputed condition. If a new condition is attached it must only be imposed if the need for it arises from the removal of the disputed condition on the original permission. The condition discussed was as follows: 'The occupation of the dwelling approved under application 50777 shall be limited to a person engaged or last engaged solely in agriculture on the Isle of Man or a widow or widower, of such a person or any resident dependants. The condition would need to meet the six tests referred to above.
2. In this case the new condition would leave Approval 50777 in a situation which would have occurred if the normal agricultural tie condition had been imposed in 1980. If it is considered that occupancy of 'Westfield' should remain restricted with an agricultural tie then this condition would be needed since it would arise from the removal of the appeal condition. I deal below with whether or not the standard agricultural tie condition should be imposed.

Whether or not there is a justified case to allow the use of 'Westfield' as a dwelling house in the countryside without complying with the normal agricultural tie condition

1. The Planning Committee considers that there is insufficient evidence to demonstrate that the property is no longer required for occupation by an agricultural worker and that the removal of the condition is insufficiently justified. It is also stressed that agricultural occupancy conditions should not usually be removed on subsequent applications unless it is shown that the long-term need for dwellings for agricultural workers, both on the particular farm and in the locality is no longer required. I have disagreed with the Committee that the disputed condition is valid. However, the Committee clearly considers that an agricultural tie should remain and if this were to be the case it would need to be the standard condition.
2. A summary of the arguments in favour of this approach is as follows:

• The principle of such a restrictive condition was valid in 1980 and would remain valid in policy terms today.
• The restriction of use by an agricultural worker (whether retired or not) should usually only be removed if a justified case has been set out.
• Housing Policy 8 (HP8) of the IOMSP indicates that 'Where permission is granted for an agricultural dwelling, a condition will be attached restricting the occupation to a person engaged or last engaged solely in agriculture; or a widow or widower of such a person or any resident dependents.
• Although 'Westfield' has never been occupied by an active farm worker it remains that case that the principle of an agricultural tie appears to have been considered by the Committee in 1980.
• Paragraph 8.9.4 of the IOMSP now states that such a condition 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.

• The usual test is for the property to be placed on the market at a discounted price. The practice is to require that the dwelling should be offered for sale at a discount of $25 \%-30 \%$ for a period of 6 months at a valuation which reflects the limitation on occupancy imposed by the planning approval.
• If, after that period the house is still on the market then the applicant is recommended to submit a further application with the relevant evidence. The discounted rate in this case is stated to be $20 \%$ and the highest offer if accepted would represent a $36 \%$ reduction.
• In this case, the property has been on the market since December 2010 with an asking price of $£ 325,000$. This was stated to be a $20 \%$ discount on the market value which would make the market value $£ 406,250$.
• These figures have not been confirmed by the appellant and there is no firm evidence to support this valuation.
• At the Inquiry no valuation evidence was offered.
• There is conflicting evidence relating to what prospective purchasers are prepared to pay and why their offers have not been accepted.
• An offer of $£ 260,000$ by Mr Mason was said to have been withdrawn due to difficulty in getting a mortgage due to the condition being attached. A second offer of $£ 250,000$ by a Mr Glaister was also withdrawn. However, the occupier of 'Killeaba Mount' indicated that they fit the criteria for living in an agricultural property and an opening offer of $£ 250,000$ was rejected.
• It is also stated that the property is saleable with the tie if the vendor had been realistic about the price and the valuation is unrealistic given that a cottage in Ballaugh of similar size was on the free market for only $£ 285,000$.
• There is no firm evidence to support a valuation of $£ 406,250$ and despite requests for clarification from the appellant and there is no evidence that specialist agricultural press was used to advertise the property.
• Although it is indicated that the agent is a specialist in marketing all types of residential properties on the Island and that the dwelling was advertised in the agent's premises windows and the press the sale details submitted do not refer to the agricultural tie.
• The occupancy of Westfield' by an agricultural worker would avoid the need for a new dwelling elsewhere in the countryside.

1. A summary of the arguments in favour of removing condition No 5 and not imposing the standard agricultural tie condition is as follows:

• The original condition was invalid and it is not exactly clear why the Committee imposed such an inappropriate hybrid personal/letting tie condition. It was imprecise, unenforceable and unreasonable in all other respects.
• There are questions about its legality and whether or not there was a 10 year time limit on the personal condition (referred to as an 'Agreement' by SPMCE)
• The disputed condition did not restrict occupation to 'a person engaged or last engaged solely in agriculture on the Isle of Man or a widow or widower, of such a person or any resident dependants'.
• It was a personal condition which only restricted occupancy to Mr and Mrs Corlett for as long as they lived and/or to a tenant of theirs (or their successors) who met the criteria set out in the defective condition 5.
• In theory, and if left in place, the condition would mean that any successor in title could only make use of the dwelling by renting it out to a qualifying person.
• 'Westfield' has never been linked to any working farm and no farm worker has ever occupied the house. Mr Corlett did not work in agriculture part time after his retirement from full time work at Bailavarteen.

• It has been a dwelling house in this part of the open countryside for over 30 years and is not obtrusive or harmful to the character and appearance of the this rural part of the Island.
• If the standard agricultural tie condition is not imposed then the only 'harm' would be 'harm in principle' in relation to the protection of the countryside for its own sake and to the aims of the relevant up-to-date planning policies relating to agricultural workers' dwellings.
• Due to the unusual and seemingly unique and exceptional circumstances of this case it is not likely that an unrestricted use would lead to a harmful precedent.

Overall and balancing conclusions

1. On the basis that condition No 5 had been the standard agricultural tie condition, it has not been conclusively shown that the appellant has demonstrated that the dwelling is no longer required for occupation by an agricultural worker in the Island. It has not been shown that a sustained and realistic marketing campaign, targeting those who might comply with the condition has been carried out. The criteria set out in 8.9.4 of the IOMSP have not, therefore, been met. However, the Committee chose not to impose the standard condition in 1980.
2. Condition No 5 was far from the standard agricultural tie condition. It was a hybrid of a personal condition for Mr and Mrs Corlett and/or one which restricted occupancy to a tenant who met the agricultural tie criteria. The wording in 8.9.4 of the IOMSP indicates that the normal agricultural worker's condition such a condition will not 'usually' (my underlining) be removed unless the criteria are met and that the 'usual' (my underlining) test is to market the property as set out.
3. This leaves open the case that 'unusually', or 'exceptionally', such a condition could be removed and that the 'usual' test need not necessarily be followed. In this case, therefore, even if the disputed condition had met all of the necessary tests the condition can be removed in 'unusual' or 'exceptional' circumstances.
4. In support of removal of the condition it is evident that 'Westfield' was never connected to a working farm and was allowed (subject to an invalid and defective personal condition) as a retirement home for Mr and Mrs Corlett. Up until Mr Corlett's death it had been occupied as a dwelling house in the countryside and, on the basis that the condition was invalid, this amounted to an unrestricted occupation.
5. When the Planning Committee refused approval for removal of condition No 5 it was noted by the planning officer that the committee's overriding concern was about 'the loss of an agricultural worker's dwelling that could otherwise be made available to the agricultural community'. However, 'Westfield' had never been an agricultural worker's dwelling and had never been let to an agricultural worker or to a retired agricultural worker. It was instead a dwelling approved subject to a personal condition, albeit one which also restricted occupancy to an agricultural worker as tenant. However, the latter situation did not occur and so, if the condition is removed, there cannot be said to have been the 'loss of a dwelling that had previously been used by an agricultural worker'.
6. Following detailed consideration of the wording of the disputed condition, the application ( $13 / 91108 / \mathrm{C}$ ) to remove it was supported by the Planning Officer's as indicated in the second report. The recommendation was to remove the condition without substituting it by any other. The Planning Officer's professional interpretation of the disputed condition was endorsed by HM Attorney General's Chambers. In going against the officer recommendation the Planning Committee continued to rely

on the disputed and flawed condition. Although they had the power to impose an alternative condition they chose not to impose the standard agricultural tie condition.

1. Having viewed the property from both near and distant viewpoints I consider that no harm, (other than harm against the principle of development in the countryside), has arisen in planning terms. In effect 'Westfield' has been occupied as though it had been an unrestricted dwelling house in the countryside for around 30 years and if the condition had been legally challenged in the courts it is my view that the challenge would have been successful and that the condition would have been deleted from the 1980 approval.
2. I agree with the Planning Authority and the Committee that the need for tied agricultural property in the long term needs to be robustly tested. However, this property was not correctly tied in terms of agricultural occupancy in the first place. It is now questionable whether, 30 years later, the imposition of the standard agricultural tie condition to the 1980 approval (50777) would be reasonable in all respects. Clearly approval for a new dwelling house in the countryside would not be granted today unless the agricultural tie criteria were met. However, this was not a new application for a new agricultural worker's dwelling. It was an application under Section 10(3) of the Town and Country Planning Act 1999 for the discharge of what is considered by the Planning Officer, the Attorney General's Chambers and myself to be an invalid condition.
3. In terms of the imposition of conditions to the 'in principle' and 'reserved matters' applications, I consider that the manner in which the Planning Authority (Planning Committee) dealt with them was defective and flawed. The 'in principle approval' had the invalid and, most likely, unlawful condition attached. The 'reserved matters' conditions should have been imposed at the 'in principle' stage; other conditions attached to the detailed approval are in themselves questionable in terms of the relevant tests and, in particular, the repeated condition No 5. It seems to me that, in trying to satisfy Mr Corlett's desire to have a new dwelling in the countryside, the Planning Authority (the Planning Committee) at that time issued conditional approvals that were invalid and defective. Their actions have led to a most unfortunate and confusing situation that has persisted to this day.
4. I have already concluded that condition No 5 as drafted should be removed from Approval 50777. I also consider that, in the overall circumstances of this case, the standard agricultural tie condition should not be imposed. Taking into account the particular planning history of 'Westfield'; the questionable legality of the disputed condition and the amount of time that the dwelling has effectively been occupied on an unrestricted basis, I do not consider that the imposition of the standard agricultural condition would meet the necessary tests of being 'necessary' or 'reasonable in all other respects'. It would simply prolong the current stalemate relating to the reasonable continuation of use and/or the sale of the property.
5. Whilst accepting that the dwelling would not be granted approval today I consider that the circumstances of the case are exceptional. Because of this and for the reasons set out above, it is my view that it is appropriate and justifiable to remove the disputed condition and to leave the use of the dwelling house at 'Westfield' as an unrestricted use.
6. I do not consider that the removal of the disputed condition, without its replacement by the standard condition, would set an unacceptable precedent whereby other applications would be difficult to refuse. I agree with the appellant and the planning officer that the particular circumstances surrounding this case are unique and exceptional. I also consider that it is most unlikely that there could be a similar set of circumstances. In any case, considered on its merits, it is my view that

an unrestricted occupancy of 'Westfield' should be allowed to continue and that this situation falls into the category of it being an exceptional case in allowing a dwelling house without restriction in the open countryside.

1. Clearly if the standard agricultural condition were to be imposed the appellants would have the option of applying for its removal. They would then have to go through the process of justifying its removal. In any normal situation regarding removal of an agricultural tie condition, I consider that this would be a reasonable, necessary and appropriate approach. However, for the reasons set out above I consider that such an approach would be unreasonable. In addition it would delay the Hospice access to funding for even longer. I acknowledge that this latter point cannot be afforded weight in planning terms but, if such a condition were to be imposed, it would mean that the commendable services and benefits that the Hospice brings to some Islanders would be further aggravated.
2. In conclusion, therefore, I consider that the appeal should succeed and that condition No 5 attached to approval 50777 be deleted and that the normal agricultural tie condition should not be imposed. This would result in a new approval. With regard to the other conditions imposed on Approval 50777, most of these would have been complied with at the time of construction and the condition requiring that Committee approval for the sale of the property be obtained, prior to sale, expired on 4 February 1990. For the avoidance of doubt, however, and if my recommendation is accepted, reference should be made to the new approval being subject to the other conditions if they still subsist and are capable of being implemented.
3. If my overall conclusions and recommendation are not accepted and it is considered that the principle of a restrictive agricultural occupancy should be continued, I alternatively recommend that condition No 5 be deleted from approval 50777 and that the following condition be substituted in its place: 'The occupation of the dwelling approved under application 50777 shall be limited to a person engaged or last engaged solely in agriculture on the Isle of Man or a widow or widower, of such a person or any resident dependants'. I do not consider that there would be any need or justified reason to impose any other planning conditions.

Recommendation.

1. I recommend that the appeal be allowed and that planning approval be granted in principle for a domestic dwelling at 'Westfield' Grenaby Road, Dogmills, Ramsey, Isle of Man IM7 4AN, in accordance with the application No 13/91108/C dated 18 September 2013, without complying with condition No 5 previously imposed by planning approval No 50777 dated 4 February 1980 (the wording of which was amended by letter dated 19 April 1980) but subject to the other conditions imposed therein, so far as the same are still subsisting and capable of taking effect.

Anthony J Wharton BArch RIBA RIAS MRTPI Inspector