Appeal 3363487

The appeal is dismissed.

An application for costs was made by W. Lawrence Taylor Ltd against Chelmsford City Council. This application is the subject of a separate decision.

A revised National Planning Policy Framework (the Framework) was published on 12 December 2024. [name] have had regard to the revised national policy as a material consideration in my decision-making, planning decisions must still be made in accordance with the development plan unless material considerations indicate otherwise. In this instance, the issues most relevant to the appeal remain unaffected by the revisions to the Framework. I am therefore satisfied that there is no requirement to seek further submissions on the revised Framework.

Outline planning permission1 was granted for the erection of a staff bungalow on 27 November 1962. This was subject to condition 3 which states that the dwelling erected in accordance with this permission shall only be occupied by a person employed on the farm of which its site forms part as indicated in the application for planning permission. The reason for this condition was that the local planning authority would not be prepared to permit the erection of a dwelling house on this site unconnected with the use of the land or adjoining land for agricultural purposes. This dwelling was constructed in 1963 and, from the information provided, is currently occupied by two residents who work in some capacity on the wider farm site, [address].

An application2 under section 73 of the Town and Country Planning Act 1990 was more recently submitted seeking to remove condition 3 associated with this planning permission. Planning permission was granted in this regard by the Council, however this included condition 2 outlined in the banner heading above which restricts the occupancy of the dwelling to a person solely or mainly working, or last working, in the locality in agriculture or the rural based economy or a widow or widower or surviving civil partner of such a person, and to any resident dependants.

This is because the Council considered that condition 3 of the original permission fails four of the tests set out in paragraph 57 of the Framework but, due to the site context, it was still reasonable and necessary to include a newly worded occupancy condition. This newly worded condition of the section 73 permission, along with condition 1 of this permission, are the subject of the appeal before me, with the appellant seeking to remove both of these conditions from the permission, allowing the dwelling to have unrestricted occupation.

As such, the main issue is whether conditions 1 and 2 of the section 73 permission are reasonable and necessary in relation to the tests set out in paragraph 57 of the Framework and the local development strategy.

Policy DM12 of the Chelmsford Local Plan 2020 (the LP) states that planning permission will be granted for the removal of a restrictive agricultural/rural worker occupancy condition on a dwelling only where certain criteria is met. This includes (i) comprehensive evidence has been submitted to show that the property, including all of its land and buildings that form part of the holding, has been marketed for sale or rent for a minimum period of 12 months at a market price to reflect the occupancy condition, and confirmation of a lack of interest, (ii) it is evidenced that there is no long-term need for an agricultural/rural workers dwelling in the locality; and (iii) the dwelling was not constructed or converted for the purposes of an agricultural or rural worker less than 10 years prior to the submission of the application to remove the occupancy condition.

In relation to the first criterion, the appellant submits that the dwelling is incapable of being marketed in accordance with this policy as it is impossible to find anyone 1 CHR/0802/62 (the original permission) 2 62/00802/S73 (the section 73 permission) capable of complying with the occupancy condition on the original permission. They also contend that for this reason local agents are unwilling to undertake such a marketing exercise. Whilst this may be the case, no clear evidence has been provided to demonstrate these points.

Furthermore, it is understood that the appellant does not wish to market the whole farm enterprise, in accordance with the wording in Policy DM12. The reasons set out for this are understandable. However, the justification for the policy indicates that the Council will make a judgement on the adequacy of the marketing exercise on a case by case basis. As such, the failure to conduct any form of marketing exercise would conflict with the first criterion of Policy DM12 of the LP in relation to the removal of a restrictive agricultural/rural worker occupancy condition.

In relation to the second criterion, the appellant contends that it is not possible to establish a need for the agricultural/rural workers dwelling in the locality without undertaking a marketing exercise. However, as detailed above, such a marketing exercise has not been undertaken. Instead, the appellant has outlined that due to the nature of the business, as an orchard/fruit based farm, no on site attendance function is necessary and any need, including any need outside of the farm itself, could be satisfied in the nearby city of Chelmsford.

Whilst orchards and fruit farming may not necessarily be likely to need an onsite presence, it is noted that the farm also features a small animal zoo which may require such provision. Furthermore, the built up confines of the city of Chelmsford are in close proximity to [address] and the dwellings in this area could be accessed from the farm by foot, via a footpath alongside the road, by workers to fulfil any need in the locality. However, this would only be in the parts of the city closest to the farm and no indication has been provided as to the suitability or availability of dwellings in this area should they be required.

Therefore, I am not convinced that it has been satisfactorily demonstrated that there is no long-term need for an agricultural/rural workers dwelling in the locality and, as such, the removal of the condition would conflict with the second criterion of Policy DM12 of the LP.

As the dwelling was not constructed or converted for the purposes of an agricultural or rural worker less than 10 years prior to the submission of the application to remove the occupancy condition, the third criterion is not relevant to the proposal before me. Nevertheless, for the reasons above, the removal of condition 2 would not accord with Policy DM12 of the LP and a restrictive agricultural/rural worker occupancy condition is therefore required.

However, the Council considered that condition 3 of the original permission was not fit for purpose and therefore this occupancy condition was reworded. Subsequently, condition 2 on the section 73 permission states that the occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or the rural based economy or a widow or widower or surviving civil partner of such a person, and to any resident dependants. The condition in the original permission, and the justification for this condition, is not before me as part of this appeal and therefore I will only consider the condition in the section 73 permission in relation to the tests in the Framework.

As the removal of the condition would conflict with Policy DM12 of the LP, which seeks to ensure that new dwellings in the countryside are justified, condition 2 is necessary and relevant to both planning and the development which was permitted, a dwelling located within the countryside.

Whilst the term ‘rural based economy’, used within the condition, is not specifically defined within the Framework, such a term generally encompasses a variety of different industries including agriculture and tourism found in rural areas. The term is relatively generic, however it would incorporate all of the diversified activities which are currently undertaken on [address] and potentially also in the wider area. Therefore, I consider it to be sufficiently enforceable, precise and reasonable in all other respects.

It is also noted that even without a condition restricting the occupancy of the dwelling, the description of the development is the erection of a staff bungalow and the removal of the relevant condition would have no effect on the description with the operative part of the permission remaining intact, albeit in an unconditioned way.

Therefore, condition 2 would meet the tests set out in paragraph 57 of the Framework and its removal would conflict with Policy DM12 of the LP for the reasons outlined above. Condition 1

Whilst the appellant considers that condition 1 relates to the location plan and supporting statement submitted as part of the section 73 application, the condition clarifies that it relates to the plans approved under the original permission and any subsequent applications relating to details that fell under the same reference.

The guidance in the Planning Practise Guidance makes clear that decision notices for the grant of planning permission under section 73 should also restate the conditions imposed on earlier permissions that continue to have effect. Condition 2 of the original permission states that the development hereby permitted may be carried out only in accordance with plans and particulars which shall previously have been submitted to and approved by the Local Planning Authority showing the siting, design and external appearance of one well designed rural type dwelling only and the means of access thereto.

Whilst condition 1 of the section 73 permission is not the same as condition 2 of the original permission, it provides the same outcome and appears to have been worded to encompass the details of the development which were submitted at a later stage. Furthermore, whilst the Council may not hold all of the original plans, some have been provided as part of this application and appeal and are still relevant to the original development.

Therefore, condition 1 of the section 73 permission is reasonable and necessary in relation to the tests set out in paragraph 57 of the Framework.

It is noted that the preference of the appellant would be to retain condition 3 of the original permission rather than condition 2 of the section 73 permission. However, although the Council approved the section 73 application and a new permission was created, the original permission remains extant and unaltered, along with the conditions attached to it.

I also note that the Council did not consult the appellant on the new occupancy condition prior to granting planning permission or give them a chance to withdraw the application and the appellant raises communication issues in relation to the Council. Nevertheless, whilst I appreciate the appellant’s frustrations, this has no bearing on my overall conclusion.

For the reasons given above, I conclude that both conditions should be retained and that the appeal should be dismissed.