The High Court case of Shortt v Secretary of State for Communities and Local Government and Another 2014 EWHC2480 ruled upon the interpretation of the definition of “dependants” within an agricultural occupancy condition attached to a planning permission. A farm and farm house was subject to a planning condition of a planning permission granted in 1974 to construct a dwelling on the property. The planning condition read as follows:

“The occupation of the dwelling shall be permitted to persons employed or last employed solely or mainly and locally in agriculture as defined by section 290 (1) of the Town and Country Planning Act 1971, or in forestry and the dependants (which shall be taken to include a widow or widower) of such persons.”

Mr and Mrs Shortt bought 22 hectares of the farm and farm house in 1994. Mrs Shortt contributed less than 20% of one full time worker to the actual farm and the annual accounts of the farm showed a loss. Mr Shortt did not work on the farm and was an independent businessman. In 2012, Mr and Mrs Shortt applied for a Certificate of Lawful Use for continued use of the farm house without compliance with the planning condition in the 1974 planning permission.

The application was made on the basis that the planning condition had not been complied with for over 10 years and was immune from enforcement and was therefore lawful because:

• Mrs Shortt did not consider herself to be an agricultural worker, as she had made no profits for over 10 years

• Mrs Shortt did not financially contribute to the family so her husband and children were not therefore dependants

At appeal for non-determination, the inspector held that the condition had not been breached. The applicants appealed to the High Court to dismiss the appeal. The court held that a dependant does not necessarily have to be financially dependant on the agricultural worker. The worker can be providing subsistence and support to the dependant of a non-monetary nature. Therefore on the facts of this case, the court deemed that Mrs Shortt’s husband and her children were her dependants. Consequently there had been no breach of the planning condition, so there were no grounds for a Certificate of Lawfulness.

Occupancy planning conditions can be very restrictive for landowners particularly where the use of the land for any commercial agricultural purpose is in decline or has ceased. Each case depends on its facts and the degree of dependency required may be different for others in different circumstances and turns on the wording of the planning condition. You therefore need to seek the advice of a specialised solicitor in order to consider your options.

For example, you may wish to apply to vary or remove an occupancy condition if, for example, you can prove that if the property was put on the open market there would be no demand for the property from an agricultural worker.

For more information please contact our specialist planning solicitor, Emma Reed, on FREEPHONE 0800 975 8091 or email [email protected]