In a recent appeal, the form of words used in the description of a development allowed Dorset Council to refuse granting a certificate of lawful use and development. The appeal concerned using an existing rural dwelling without any agricultural occupancy restrictions. Records of the original 1973 outline planning permission did not exist on the Council’s database, nor was there a record as a local land charge. The only record of planning permission was the reserved matters permission on the Council’s database, describing the development as an “agricultural bungalow”.
Relying on that wording, the Council argued that the bungalow was in a remote location, therefore it would only have been granted planning permission due to special circumstances such as being an “agricultural bungalow” intended to be occupied by an agricultural worker. At the time of the appeal, the bungalow was occupied by the appellants and their parents. They argued that even if agricultural occupancy had been a condition in the outline planning permission, it would be unenforceable due to the lack of records.
To resolve the issue, the inspector relied on a previous Court of Appeal case, Winchester City Council v Secretary of State for Communities and Local Government  EWCA Civ 563. In this case, planning permission was granted for a change of use from agricultural land to a “travelling show-people’s site”, without restrictions regarding the use for other classes of caravan occupiers. Nevertheless, the planning authority issued enforcement notices in 2010, alleging that the caravans were occupied by persons other than travelling show-people, which constituted a material change of use. The test used by the Court to determine what happens where there is no breach of any condition was to ask: (a) whether a change of use had taken place, and if so, (b) whether the change was material. In Winchester, the fact that travelling show-people were a distinct group with their own specific planning issues was important.
In the present case, the inspector’s view was that the wording in the reserved matters permission was for an “agricultural dwelling”. Agricultural workers were a distinct group, and it was arguable “on the balance of probabilities” that occupation of the bungalow by persons not engaged in agriculture would be a material change of use. Allowing the Council to rely on the wording in the reserved matters permission, the inspector dismissed the appeal.
In conclusion, the words used in a reserved matter permission describing a type of development became essential in restricting that use to a particular class of person in the absence of any other records.
25th September 2023