Brook v Secretary of State for Communities and Local Government & Anor [2013] EWHC 4006 (Admin)

Case No CO/10138/2011[2013] EWHC 4006 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre,, 33 Bull Street, Birmingham B4 6DSDate 13/12/2013
Before
MR JUSTICE STEWART
Between
Paul William George BrookAppellant(1) The Secretary of State for Communities and Local GovernmentFirst Respondent(2) East Staffordshire Borough CouncilSecond Respondent
Mr Timothy Leader (instructed by Brooks Solicitors) for AppellantMr Gwion Lewis (instructed by Treasury Solicitor) for First RespondentHearing Hearing date: 11 December 2013
JudgmentMr Justice Stewart :Procedural Background
[1]After a site visit on 13 June 2011 and an inquiry held on 14 June 2011 the Planning Inspector, Mr David Harrison issued a decision dated 20 July 2011. His decision was in respect of an appeal made by the Appellant under section 174 of the Town and Country Planning Act 1990 (“the 1990 Act”) as amended by the Planning and Compensation Act 1991. The appeal was against an enforcement notice issued by East Staffordshire Borough Council (“the Council”).[2]The appeal site is Town End Farm, Piccadilly Lane, Upper Mayfield, Ashbourne DE6 2HP. The site was purchased jointly by the Appellant and his sister and ownership of various parts of the holding was subsequently divided between them. The Appellant is also a solicitor. Only the First Respondent has contested the appeal. I shall refer to him as “the Respondent”, in this judgment.[3]On 18 October 2011 the Appellant issued judicial review proceedings in the Administrative Court at Birmingham. The Appellant (who was acting in person) did not accept the suggestion in a letter from the Respondent explaining that the judicial review should in fact be an appeal under section 289 of the 1990 Act. This led to an order of Judge Cooke on 7 December 2011, providing that the matter should proceed by way of section 289 appeal, and listing a hearing to determine the issue of permission to appeal and permission to appeal out of time.[4]The hearing took place before Beatson J (as he then was). He granted permission on one Ground. The Respondent did not receive a copy of the order of Beatson J. An order was eventually sealed on 20 February 2013 simply ordering:
“1. That permission to proceed with the claim for judicial review be granted. 2. The application to extend is granted.”
[5]Once the Respondent received Beatson J’s order they wrote to the court explaining that the Learned Judge had only granted limited permission. The substantive hearing of 25 June 2013 was adjourned so that a transcript of the hearing of 15 June 2012 could be obtained.[6]On 7 November 2013 the Treasury Solicitor wrote to the court referring to the transcript. On 15 November 2013 Hickinbottom J made an order of the court’s own motion as follows:
“(i) Paragraph one of the order of 15 June 2012 be amended under the slip rule, so that it reads: that permission to appeal be granted limited to the Appellant’s first Ground, namely that the Inspector acted unreasonably and unlawfully by concluding that, for the purposes of section 174(2)(a), the functional need test was not satisfied.”
In his observations Hickinbottom J wrote:
“…the application for permission was heard by Beatson J…on 15 June last year. I have a transcript of the judgment ([2013] EWHC 4368(Admin)). I consider it is clear beyond any doubt from that transcript that the judge gave permission to appeal on one Ground only, ie. the Appellant’s first Ground (see paragraph 7 and following, and paragraphs 29 – 33). Paragraph 33 made it clear beyond doubt that he was granting permission on “this Ground and on this Ground alone”
. The order produced did not reflect that. It refers to a judicial review rather than a statutory appeal, and it does not restrict the Grounds as Beatson J clearly did. I have made an order amending that order under the slip rule. If any party considers that Beatson J might conceivably have intended to grant permission wider than that, then I have given permission to apply. I know that the Claimant is currently seeking legal advice on the scope of permission; but I have made an order in that form, without intending any discourtesy to Beatson LJ, because I consider the order he intended to make is clear beyond doubt, and it is important that this appeal is determined: it is old and has a hearing date fixed for 11 December. The appeal hearing has already been the subject of one adjournment whilst the scope of the permission was clarified. Now that that scope is clear, it is important that that fixture is not lost.”[7]On 25 November 2013 the court received an application notice asking for permission to add to the grounds on which the Appellant was permitted to argue. The Appellant was asking to add grounds that the Inspector erred in law in that he:
“Failed to have regard to a relevant matter, namely that the use of my land was authorised by Schedule 2, Part 5, paragraph A of the Town and Country Planning (General Permitted Development) Order 1995. In determining that a material change of use had occurred he disregarded a relevant matter, namely the character of the existing use of the appropriate planning unit. Alternatively, his approach to determining whether a change of use had occurred was unreasonable.”
There was a detailed Skeleton Argument from Mr Leader, Counsel, dated 21 November 2013. This was for the hearing of the substantive issue on 11 December 2013 and included the supplementary grounds upon which the Appellant wished to rely. Alternatively, his approach to determining whether a change of use had occurred was unreasonable.”[8]On 28 November 2013 Hickinbottom J refused the application as totally without merit, and ordered that any application that the refusal be reconsidered at an oral hearing should be made within three days of service of the order and should be heard at the start of the substantive appeal hearing on 11 December 2013. There has been no application for reconsideration. Therefore my decision relates to the single Ground for which permission was granted by Beatson J.

The Inspector’s Decision

[9]I need to set out the enforcement notice in some detail so that the formal decision of the Inspector can be understood. So far as material it reads:
“ENFORCEMENT NOTICE – OPERATIONAL DEVELOPMENT … 3. The Matters Which Appear to Constitute a Breach of Planning Control The erection of a dwelling without planning permission. … 5. What You Are Required to Do. (i) Permanently cease the occupation of the dwelling. (ii) Demolish the dwelling and remove all arising material from the land. 6. Time for Compliance. (i) Within 30 days beginning with the day on which this notice takes effect. (ii) Within 60 days beginning with the day on which this notice takes effect. 7. When this Notice Takes Effect. This notice takes effect on 27 September 2010 unless an appeal is made against it beforehand.”
[10]The formal decision of the Inspector is to be found in paragraph 53 namely:
“53. The enforcement notice is corrected by deleting “operational development” from the heading and substituting “material change of use”, and by deleting the allegation from paragraph 3 and substituting “stationing of a twin-unit mobile home used for residential purposes and the erection of a brick built plinth and porch”
. The notice is varied by deleting the requirements in paragraph 5 and substituting “(i) permanently cease the residential occupation of the twin-unit mobile home andattached porch (ii) remove the twin-unit mobile home from theland, demolish the brick plinth and porch and remove all the arising materials from the land”, and by deleting the time for compliance in paragraph 6 and substituting “(i) within six months of the date of this decision and (ii) within seven monthsof the date of this decision”. Subject to these corrections and variations, the appeal is dismissed and the enforcement notice is upheld, and planning permission is refused on the application deemed to have been made under section 177(5) of the 1990 Act as amended.” The Inspector’s Decision: Material Findings.[11]The central findings of the Decision Letter (“DL”) are:(i) Town End Farm has 60 acres of farmland. There are three stone barns on the land. One was converted into the dwelling where the Appellant lives (Town End Farm), the second has been granted a Lawful Development Certificate (LDC) for use as a dwelling (Town End Barn) and third (currently derelict) has been granted planning permission for conversion to a live/work unit (“the Barn”) (DL para 5).(ii) The “bottom yard” has a complex of equestrian related buildings and “the top yard” has a range of cattle and sheep buildings and the dwelling/mobile home which is the subject of the notice (DL para 6).(iii) The twin-unit mobile home was placed on a concrete slab laid in the top yard. The electricity is supplied by underground cable, there is a bottled gas supply, and there is a piped water supply and drainage to a septic tank (DL para 9).(iv) The twin-unit mobile home has been in place since June 2008. Though capable of being moved, the Appellant regards it as a “permanent” solution to the need to accommodate an agricultural worker close to the lambing and calving sheds. (DL para 14).(v) The Inspector found that the primary use of the twin-unit mobile home was residential and not in a mixed residential/farm office/farm store use (DL para 19).(vi) The main issue on appeal Ground (a) was whether, on the evidence before the Inspector, there was a need for an additional dwelling on the holding to accommodate an agricultural worker. (DL para 24) [“Section 174 of the 1990 act (so far as material) provide as follows: 174-Appeal Against Enforcement Notice (1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. … (2) An appeal may be brought on any of the following grounds – (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged.” ] [“Section 174 of the 1990 act (so far as material) provide as follows:(vii) Planning Policy Statement 7 Sustainable Development in Rural Areas PPS 7 includes advice relating to agricultural dwellings. Paragraph 1 of Annex A to PPS 7 refers to circumstances where isolated residential development in the countryside may be justified. This is when accommodation is required to enable agricultural (and certain other) full time workers to live at, or in immediate vicinity of their place of work. Annex A sets out two tests: the financial test and the functional test. The national policy is reflected in policy F11 (housing in open countryside) in the Staffordshire and Stoke on Trent Structure Plan 1996 – 2011. (DL paras 25 – 26). The material parts of PPS 7 and Annex A are set out in the Appendix to this judgment.(viii) The Inspector found that the Appellant satisfied the financial test under PPS7. (DL paras 27 – 28).(ix) In respect of the functional test he found: (a) Mrs Hall, an experienced shepherdess and keeper of farm records, has lived in the mobile home since June 2008 (apart from six months). The evidence showed, and the Council’s witness, Mr Malkin, accepted, that there was a functional need for an agricultural worker to live “very close to” the site of their work (DL paras 29 – 34). (b) The Appellant had argued that only some form of residential accommodation immediately next to the lambing and calving buildings would be suitable in view of the need for a worker to be available night and day during the lambing season (between December and May) and when calves were being born which can occur at any time of the year (DL para 34). (c) “35. Town End Farm (House 1) belongs to Mr Brook and is about 0.2 miles by from (sic) the top yard. Mr Brook lives there himself and another bedroom is occupied by Jennifer O’Neil who is employed on the farm and a third by Rebecca Cammish, who is employed as a groom. There are no tenancy agreements.” (d) “36. Town End Barn (House 2) is about 0.1 miles from the top yard along the track. A lawful development certificate for use as a dwelling was granted on 27 May 2011. This house belongs to Mr Brook’s sister, and an estate agent has recently been instructed to arrange for its sale. She lives elsewhere, and at the time of the enquiry it was occupied by two people employed by Mr Brook as grooms. Again, there are no tenancy agreements.” (e) “37. The Barn (House 3) is next to House 2 and is currently derelict. The barn was granted planning permission to be converted into a live/work unit on 07 March 2011. It appears to be jointly owned by Mr Brook and his sister.” (f) “38…all three (houses) are within walking distance of the lambing and calving sheds.” (g) “40. I have carefully considered the evidence and my conclusion is that the functional need could be met by a suitable worker living in either House 1 or House 2, (or possibly in the longer term in House 3). Some form of “mess room” next to the lambing and calving sheds on the lines described by Mr Malkin could meet the need to be on hand at particularly busy periods. I see no reason why this arrangement would not work satisfactorily.” (h) The Inspector then went on to consider whether the alternative accommodation was actually available. He found that in respect of House 1:
“Despite Mr Brook’s reluctance to entertain the idea, Mrs Hall or another suitable employee could occupy either of the rooms currently used by the two other employees. Neither of them have any form of tenancy agreement and Mr Brook could make the accommodation available to someone else at fairly short notice. It is a matter for him.” (para 41). In respect of House 2 he said it was “in the family” and relied upon paragraph 5 of Annex A to PPS7 (DL paragraph 42). In respect of House 3 the Inspector noted that Mr Brook had said the holding was originally jointly purchased by himself and his sister and was subsequently divided up. The Inspector commented “it would have been prudent when organising the division of the property to ensure that sufficient accommodation for future employees was retained under his control.” (DL para 43). (x) Finally on the functional test the Inspector concluded: “44. Accommodation for a suitably qualified farm worker (not necessarily Mrs Hall) could fairly quickly be made available in House 1 by relocation one of the current occupants. There is also potentially space available in House 2, and in the longer term, possibly in House 3 also. This may not be in line with Mr Brook’s wishes but I have to consider the need of the holding and not the personal preferences or circumstances of any of the individuals involved. I therefore intend to refuse planning permission for the retention of the mobile home in the top yard.”

The Appellant’s Challenge

[12]As mentioned above the live Ground of appeal is whether “the Inspector acted unreasonably and unlawfully by concluding that, for the purposes of section 174(2)(a), the functional need test was not satisfied.” The central issue is whether the alternative accommodation was actually available (DL paras 41 – 44). No reliance is placed on the Inspector’s finding in respect of houses numbers 2 or 3. In respect of House 3 he found that there was a potential space available in the longer term; in respect of House 2 he found only that there was “potentially space available”. Even had he found that there was alternative accommodation in Houses 2 and/or 3, and if that finding had been bad in law, this is irrelevant if his finding in respect of House 1 was correct: see Simplex GE (Holdings) v Secretary of State for the Environment and the City and District of St Albans District Council [1989] 57 P & CR 206. I therefore turn to the findings in respect of House 1.[13]The Appellant challenges the Inspector’s finding that because the grooms did not have tenancy agreements they could be ejected by the Appellant. The Appellant says he was wrong in this. He should have considered that the grooms had a contractual right to live there. In so doing he overlooked a relevant matter that led him to a false conclusion. The Appellant said he had no opportunity to lead the evidence on this point.[14]The Inspector has produced a witness statement dated 29 April 2013. These are the material paragraphs: “[6]I understand that the Appellant asserts in his section 289 appeal that the two grooms who were residing in House 1 at the time of the Inquiry had, by virtue of a term contained in their employment contracts, a contractual right to be accommodated by the Appellant. I can confirm that no evidence to this effect was presented to me at the Inquiry. The appellant did not produce evidence to confirm that the grooms had either(i) a general right to be housed (somewhere) by the Appellant, or(ii) a specific right to be housed in House 1.[7]…[8]The Appellant was cross-examined about the grooms’ occupation of House 1 and he accepted at the Inquiry that neither of the grooms had a tenancy agreement in place. The Local Planning Authority’s case was that the grooms could therefore be required to leave House 1 to enable the shepherdess to be accommodated there and at no point did the Appellant give any evidence to suggest that this was not in fact legally possible.”[15]The Appellant submits that the Inspector was wrong to suggest in paragraph 8 of his statement that the Council had, prior to the inquiry, referred to the possibility that alternative accommodation could be provided at Town End Farm or anywhere else. He says that he was subject to a surprise attack through cross-examination and had he been forewarned of the attack or of the significance which the Inspector attached to the point he could have provided the contracts of employment.[16]Mr Brook filed a witness statement dated 11 June 2013 in response to the Inspector’s statement. Material parts of Mr Brook’s statement are:
“6. It is correct that two grooms were residing in House 1 at the time of the inquiry and had by virtue of a term contained in their employment contracts, a contractual right to be accommodated. No direct evidence was presented to the inquiry in this regard as it was not envisaged that the Inspector would simply suggest that the grooms could vacate to make way for the shepherds. I recall explaining during cross-examination that the grooms had a right to live there and both were from outside the area….” “8. Neither of the grooms has a tenancy agreement. If I was asked this question during cross-examination then I would reply in the affirmative. However, this does not take away the contractual right of the grooms to accommodation.” …… “…it was also made clear that the grooms had no choice but to live-in occasioned by the distance their homes were situated away from the farm. I also verily believe that I pointed out to the Inspector that the grooms had a contractual right to live in at the farm although there was no tenancy agreement as such. In the circumstances, a tenancy agreement was not appropriate.”
The statement is signed by Mr Brook with a Statement of Truth.[17]Exhibited to Mr Brook’s statement is a letter to Miss J O’Neil, the Liverpool groom. The letter is dated 10 March 2003 and states:
“Re: Vacancy for Groom at Town End Farm I confirm that I am pleased to offer you employment as a groom subject the following terms: … 3. Your accommodation to include one double bedroom for your exclusive use plus the facilities of the house including all meals.”
[18]Having received the Appellant’s Skeleton dated 21 November 2013, and the email dated 4 December 2013 in which the Appellant confirmed that he would not seek an oral reconsideration of Hickinbottom J’s order of 28 November 2013, the Defendant served a Skeleton dated 5 December 2013. At 11pm on 10 December 2013, the eve of the hearing, Mr Leader, Counsel for the Appellant, served a document entitled “Appellant’s Supplementary Skeleton Argument” upon Counsel for the Respondent. I received it on the morning of the hearing. Apart from clarification there were new (or substantially new) points made in support of the single ground of appeal. Despite objection by the Respondent, I gave a ruling permitting the Appellant to rely upon everything in the Supplemental Skeleton save for one matter. This was the application to rely upon the Appellant’s witness statement and the exhibited letter dated 10 March 2003 as fresh evidence capable of overturning the Inspector’s decision, even if the Inspector had not erred in law in any respect. In the light of this latter ruling this judgment is concerned only with whether the Inspector did so err.[19]It became clear during the hearing that the first matters for me to determine was what happened in the inquiry. Based upon his witness statement of June 2013 the Appellant relied particularly on the sections which say that:-(i) he “pointed out to the Inspector that the grooms had a contractual right to live-in at the farm although there was no tenancy agreement as such”(ii) he recalled “explaining during cross-examination that the grooms had a right to live there…”[20]This evidence must be evaluated in the light of the Inspector’s evidence, paragraph 6 and 8 in particular, which are set out above in paragraph 14. There are also handwritten notes of the Inspector made during the course of his hearing.[21]In summary the analysis is as follows:(a) If I find that the Appellant did say to the Inspector that the grooms had a contractual right to live in the house, then the Respondent accepts that the Inspector’s decision is flawed because he omitted to take account of a legally relevant consideration.(b) If the Appellant did not mention that there was a contractual right or, at least did not mention the word “right”, then the Appellant accepts that he cannot successfully challenge the decision.(c) If the Appellant did mention a “right to live there”, or similar words incorporating the word “right”, the Appellant submits that the Inspector had a duty to enquire further before reaching his conclusion. The Respondent disagrees.[22]There is no suggestion that either the Appellant or the Inspector has been in any way deliberately misleading. The Appellant relies upon the following matters, in particular, in support of the recollection contained in his witness statement:(i) The Claimant is a qualified solicitor and has worked as a Deputy District Judge and Assistant Coroner. He is therefore a professional person whose witness evidence should be regarded as reliable.(ii) The Inspector has made some errors of fact in his decision letter. Two of these were in paragraph 5 where he said that Town End Farm was “purchased at auction” and that “the original farmhouse was not included in the sale”. These were incorrect on the basis of the documents before him. He had made a legal error (the parties agreed) in paragraph 21, in relation to Ground (d) where he held that the four year rule applied rather than the ten year rule. Finally in paragraph 36 he stated in respect of Town End Barn (House 2) that “at the time of the inquiry it was occupied by two people employed by Mr Brook as grooms.” This was not correct at the time of the inquiry.(iii) It was also said that his notes were not as tidy and comprehensive as one might expect. In respect of these points, following the same numbering, I comment: (i) There is some merit in this point but it only goes so far. (ii) There were no errors of substance which touch directly on this appeal (a), but I take the point that the Inspector did make some factual errors and I evaluate the rest of the evidence against that backdrop, for what it is worth. (iii) Although the notes may have been more comprehensive/more tidy if written by another Inspector, there is nothing on the face of them to suggest that they are inadequate or inaccurate.[23]My finding is that, notwithstanding the above points, I do not accept that Mr Brook’s recollection that he mentioned either “contractual right” or “right” is accurate. I say this for the following reasons:(i) The Inspector makes it clear at paragraph 8 of his witness statement that “at no point did the Appellant give any evidence to suggest that this was not in fact legally possible”, “this” being that the grooms could be required to leave House 1 to enable the shepherdess to accommodated there.(ii) Mr Leader focussed on the words in paragraph 6 of the Inspector’s statement, namely “the Appellant did not produce evidence to confirm that the grooms had either (i) a general right to be housed (somewhere) by the Appellant, or (ii) a specific right to be housed in House 1”. He said that the use of those words was indicative that the Appellant had given evidence of such a right but had merely not backed it up with documentary proof. I reject that submission in the light of the clear words in paragraph 8.(iii) I regard it as extremely unlikely that if the Appellant had mentioned a “contractual right” or a “right” that the Inspector could possibly have come to the decision which he did in paragraph 35 and 41 of the decision letter. I reject Mr Leader’s submission that what probably happened is that the Inspector (and others) conflated absence of a tenancy agreement with no right to occupy. There was a qualified Inspector and both sides were represented by Counsel. It is practically inconceivable that this error, as alleged, could have occurred. It is contrary to the weight of the evidence in any event.(iv) Although it is unusual, inspectors may be cross-examined at a substantive hearing. There was no application to do this. At the outset it was submitted that there was no inconsistency between the evidence of the Appellant and that of the Inspector. This was wrong.[24]The Inspector’s notes had been sent by the Respondent to the Appellant. Apparently he had not received them. They were not in the bundle. Shortly before lunch on the day of the hearing, a further copy was made available. They are not transcribed and it is a little difficult to make very clear findings on them. Nevertheless, these contemporaneous notes contain no reference to the word “right” or to the expression “contractual right”; or to anything like these terms. Mr Leader relied upon the following: (i) Evidence which appears to have been given by Mrs Hall, the shepherdess as follows:
“Q: says you could go in the farmhouse A: the LDC barn has two grooms in it”
A: the LDC barn has two grooms in it” I was asked to assume that the LDC meant House 1. Even if this is correct, it falls far short of making out the submission that the shepherdess could not go in House 1 because the two grooms had any legal right to remain in it. (ii) In what appeared to be evidence from the Appellant “Mrs Hall can’t live in my house – taken by two grooms now. 1. Jennifer O’Neil – there since 2003, 2. Plus another from Filey, Rebecca Cammish – for one year.” In my judgment this does not advance the Appellant’s case. (iii) A submission by Counsel for the Appellant (who was not Mr Leader) to the Inspector that the “grooms’ accommodation will be lost – but this comes with the job – Rebecca needs accommodation too. Not realistic to pay her rent for a room in town.” I do not accept that “this comes with the job” means that there was evidence of a right or a contractual right. Indeed it is remarkable that there is no reference by Counsel to any right or any contractual right in his submissions. If anything, this favours the Respondent’s case. (iv) There is also a reference in the notes to “the farmer in one bedroom and the staff in two others. We’ve got a full house – no room for admin too.” In my judgment, this does not take matters any further. [Although it is apparent from the above notes that, in my judgment, the Inspector’s recollection is confirmed rather than undermined, there is another passage in what appears to be evidence from Mr Brook. This was not referred to at the hearing because of the circumstances in which the notes arose. I therefore emphasise that I would have made this same decision apart from this extract. Nevertheless for the purposes of recording it, there appears to be some questioning about Rosemary Cammish where the note reads as follows: “Rosemary not paying rent? A: No. No tenancy agreement. Registered on Elec Roll? No. None of the workers want to go on the list. ”][25]I also note that in the Statement of Grounds in support of the application for the judicial review the Appellant said in paragraph 14 “the Inspector quite wrongly says that room could be made for the shepherd in the barn where I reside by getting rid of one of the other employees. He does not show any recognition of the fact that the employee to be got rid of clearly has employment rights, one of which is accommodation.” Although this could be said to be consistent with there having been evidence at the inquiry as to employment rights, one would have expected that, had this been the case, Mr Brook would have made it crystal clear in his Grounds. It is not crystal clear.[26]This is not a criticism of Mr Brook’s integrity, but I do note that his statement is on its face somewhat inconsistent given that at one point he states in relation to the contractual right “…no direct evidence was presented to the inquiry in this regard as it was not envisaged that the Inspector would simply suggest that a groom could vacate to make way for the shepherd.”[27]There had been complaints by the Appellant that the point that House 1 could be used for the shepherdess had not been trailed by the Council’s witness, Mr Malkin, in his written proof of evidence and so the Appellant was subject to a surprise attack through cross-examination. During the hearing it became clear that Mr Leader could not rely on this as a separate Ground. Although it is right that the Council never specifically suggested that a groom could be ejected, I reject this complaint in any event. Further than that, given the passages which I now set out from Mr Malkin’s evidence, there was sufficient clarity of the statement by him so as to have made it clear to the Appellant that he should have adduced any evidence of any impediment to the grooms moving out of House 1. The relevant passages of Mr Malkin’s proof are:
“2.5 …no substantial evidence has been submitted to support the need for an additional dwelling in this location. The need to live close to livestock on occasions is agreed, however within walking distance of the farm buildings is the existing Town End Farmhouse, a barn on which the Council is currently considering a planning application… for conversion to a live/work unit, and a stone barn, that the applicant has contended via a Certificate of Lawfulness application…has been used as a dwelling for over four years. 2.6 It is therefore noted that there is already in place two dwellings, albeit one that is currently unauthorised, and a barn which is the subject of a planning application for conversion to a live/work unit. If this is successful then there will be three dwellings linked to Town End Farm, which would be sufficient to house all necessary workers for a farm that extends to 225 acres (90 hectares) should a need be proven in the first place. … 4.6…There is sufficient residential accommodation already available for this unit, without the dwelling which is the subject of the appeal, for a farm unit of this scale.”
[28]Having regard to my findings above, the appeal must fail. However for completeness I shall briefly deal with the argument that, if Mr Brook had mentioned a “right” but not a “contractual right”, then the Inspector was under a duty to investigate further. In Secretary of State of Education and Science v Tameside MBC [1977] A.C. 1014 at 1065B Lord Diplock said:
“…the question for the Court is, did the Secretary of State askhimself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer correctly?”
In E v Secretary of State for the Home Department [2004] QB1044; 2004 EWCA Civ. 49, Carnwath LJ (as he then was) at paragraph 64 referred to the Tameside case and pointed out that in certain spheres eg. the Council and the Secretary of State in Tameside and asylum cases in E, “it is in the interests of all parties that the decision should be made on the best information”. Earlier in paragraph 64 he has said:
“64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis.”
Nevertheless the underlying principle referred to in these cases must depend on the particular circumstances. A planning inquiry is a very different animal from the type of decision made in the Tameside case. This is particularly so where both sides are represented by Counsel and the Appellant himself appeared before the Inspector as a qualified solicitor and a businessman, apart from other judicial offices which he held. In that particular context if Mr Brook had said that the grooms had a right to be there but had in no way linked this to any legal right and had specifically said there was no tenancy, I do not accept that the Inspector was under a duty himself to enquire further. He would have been perfectly entitled to assume that, absent any alleged legal right by the Appellant, the Appellant was merely referring to some moral right.

Conclusion

[29]For the above reasons the Inspector did not act unreasonably and/or unlawfully by concluding that the functional need test was not satisfied. He was entitled to reach the conclusions he did on the evidence before him. The appeal will be dismissed.[30]In those circumstances I make the following

Upon hearing Counsel for both parties:

[1]The appeal be dismissed.[2]The Appellant do pay the First Respondent’s costs summarily assessed at £12,749.

order

Upon hearing Counsel for both parties: IT IS ORDERED THAT