Chichester District Council
Agenda item

Agenda item

SDNP/18/05093/LDE - Buryfield Cottage, Sheepwash, Elsted, Midhurst, GU29 0LA

Existing lawful development certificate for occupation of a dwelling house without complying with an agricultural occupancy condition

Decision:

Refuse.

Minutes:

Mr Saunders provided an update with regards to the South Downs National Park Local Plan:  On 1st February 2019, the SDNPA published the Main Modifications schedule to the South Downs Local Plan.  The consultation on the ‘Main Modifications’ ran from 1 February 2019 and ended on 28 March 2019.  Whilst the Main Modifications have been proposed without prejudice to the Inspector’s final conclusions, it is not expected that the Inspector will now propose any further changes when issuing his final report in the spring.  Therefore, the South Downs National Park Authority considers that ‘significant weight’ should now be applied to all policies in the South Downs Local Plan, as amended to incorporate the Main Modifications.  This means that the policies should be given greater weight than any saved policies that were adopted prior to the National Planning Policy Framework (2012) that has, until now, formed part of the development plan.

 

Additional information was reported on the agenda update sheet by way of a letter from the applicant which had been forwarded to Members of the committee.

 

Mrs Golding drew the committee’s attention to point 15 in the applicant’s letter which cited two pieces of legal evidence, both from the case of Parker v Yeo 1972, and confirmed this was not a planning case, but one related to qualifying to stand as a Councillor and if the place of work was the council offices and whether the work of a Local Authority Councillor was employment for the purposes of the Local Government Act 1972.  The judge in this case ruled that although Councillors undertook work, this had a wider meaning than business or employment, and the duties of a Councillor did not therefore amount to employment. 

 

The following member of the public addressed the committee:

 

Mr A Shaxson – Applicant

 

The Chairman requested Mrs Golding to respond on the final statement from the applicant.  Mrs Golding confirmed that the appeal decision from the agent and applicant had been received but the applicant had quoted ‘only part of a sentence’ and Mrs Golding provided the committee with both relevant sentences in full:  ‘The word ‘employed’ can take the meaning of spending time doing something simply from pleasure or out of interest such as a hobby regardless of the financial outcome or with the intention of doing something with a financially beneficial outcome such as paid work’.  The inspector continued, ‘I consider that ‘employed’ in the condition is to be given the meaning more akin to the latter rather than the former.’ 

 

The Chairman commented that when he began his role as District Councillor in 2007, it was made abundantly clear to Councillors that they were not employees of the Council. 

 

A Member of the committee commented that the issue was not one of whether a Councillor received a wage or allowance but related to a building which no longer had a connection with agriculture and cited another application in which change of use from agricultural residence to normal residence had been granted in recent years.  Mr Saunders confirmed that on a point of clarification the application was not to lift the condition, but for a ‘Lawful Development Certificate’ which focuses on whether that condition has been complied with for a period of time, and that the condition was quite specific in that it restricted the dwelling to someone employed in agriculture and also covered the opportunity for an occupant to have retired from agriculture.  Considering the evidence, the applicant was last employed in agriculture and so had complied with the condition.  Mrs Golding reiterated that the planning merits of lifting the condition were not relevant, as this is not a planning application, but the applicant is able to submit an application to lift the condition.  The matter for consideration was whether the condition had been complied with which the officers have confirmed, as the applicant’s last employment was in agriculture. 

 

During the discussion Members debated the role of a Councillor with a paid allowance, the associated tax implications for a financial income, the definition of agriculture and ‘Lawful Development Certificates’.  Mr Whitty responded that the merits of the case are not relevant, and that it was the applicant’s choice to submit an application for a Lawful Development Certificate  as he clearly felt he had breached the condition for long enough and this was the best way of achieving their aims.  If they wished to submit an planning application to lift the tie, Members would have to consider whether or not there was still a need for agricultural workers on the farm, which it is still part of.  With regards to the current application, it has been submitted as stated  and the merits cannot be taken account of.  As Mr Saunders and Miss Golding has set out, the question was ultimately whether the activities undertaken by the applicant in the last twenty years form employment.

 

Members further debated what might be classed as income with reference to HM Revenue and Customs.  Miss Golding responded by advising  that when considering whether there is a breach of an agricultural occupancy condition, the courts advise ‘to turn it on its head’ and therefore by permitting this it would be accepting that in the last ten years, an enforcement notice could have been served and the occupant required to leave, as the occupant would have been in breach of the condition.  Therefore, in the future if another Councillor is a retired farmer with an agricultural occupancy restriction, to be consistent’ an enforcement notice would have to be served.  By permitting this, the authority would be accepting that was a breach, and by becoming a Councillor, they are breaching the condition, which was potentially not the intention of the condition, to not permit retired farm workers to become Councillors or undertake any other voluntary ‘work’.  Mr Whitty added that officers would steer members away from considering income and taxation as a key element, this was about the relationship the Councillor shares with the organisation, with regards to benefits and how an employment tribunal would consider those, and on that basis officers are recommending that it does not constitute employment.  

 

Recommendation to Refuse agreed.

 

Supporting documents:

 

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