18 th July 2013 JFL/1057. Dear Councillors M Burke, Legg, McLean and C Williams

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1 18 th July 2013 JFL/1057 Dear Councillors M Burke, Legg, McLean and C Williams Re Application 12/0004/FUL Retention of rebuilt stable block to provide 3 units of accommodation for agricultural workers at Dollars Grove Farm, East End North Crawley. I refer to this application which is item APP06 on the agenda and I would be grateful if you could consider the points made below in response to the officer s report and to clarify some of the facts in that report that are incorrect. Members are invited to refer to the detailed reports submitted as part of this revised application that provided information to your officers although there is little mention of these details within the agenda report. The reports included: 1. a Heritage Statement from DJC Associates, 2. a supporting note from Keystone Law dealing with the question of curtilage and the setting of the listed building Dollars Grove Farm, 3. a Design, Access and Justification Statement, 4. a copy of the original Statement of agricultural need from Fisher German 5. a later detailed response following the Council s advisor s report from Landscope Land and Property on agricultural need dated 11 th June forwarded to Alex Harrison from myself. The main areas of concern relate to the following: 1. The circumstances of the collapse of the original barn. In the submitted Design, Access and Justification Statement prepared by Jennifer Lampert Associates Ltd we clearly set out in paragraph 1.8 that the existing stable block had collapsed. We provided in Appendix 1 a photograph of the stable building as it was originally and then when it was in a state of collapse. It was not intentionally demolished and the decision to rebuild immediately was in fact taken to preserve the footprint of a building on that site as previously collapsed buildings on the farm had been lost to posterity. Both the original building and its replacement are of a simple construction with the replacement building being designed with a lower eaves level deliberately designed to be low key, giving a predominantly single storey in appearance with rooms then being placed in the roof space. It has been constructed over a similar footprint. It is misleading for the officers to state in paragraph 5.10 of their agenda report that the application building is a significantly larger structure detracting from the setting of the listed farmhouse., when the appearance has been deliberately kept subservient to its surroundings. Listed building consent would not have been required as the building collapsed, but we challenge the view that the building was and is within the curtilage of the listed building in any event. (See item 2 below). 1

2 2 The relationship of the new building to the listed farmhouse Dollars Grove Farm and whether it is within the curtilage. In response to the assertions contained in the previous notice of refusal and the Council s Conservation Officer opinion that the original building and now the replacement building was within the curtilage of the listed building the applicants sought a legal opinion from Martin Goodall from Keystone Law in September His detailed advice was submitted as part of the revised application. He also forwarded a copy to the Planning Officer and to the Council s Legal Department. A copy is attached to this letter. His conclusions are that the occupation of Dollars Grove Farm is separate both physically and functionally from the agricultural buildings which include the large portaltype barns and the stables building. He refers in his paragraph 9 and 10 to the details provided in the Heritage Statement (which was also submitted with this revised submission) and to photographs which confirm that the farm house and its immediate grounds are physically and functionally separate from the adjoining farm yard and its associated buildings. Mr Goodall provides examples within his advice (see par 15) of case law which stresses the need for the alleged curtilage to have a functional relationship with the dwelling house, which must necessarily be related to its residential use. He also referred in paragraphs 16 to 24 to the judgement of the courts by Sullivan J in the Mill Barn case that there was a clear distinction between the farmhouse and its curtilage and the farmyard with its buildings which included Mill Barn. It is clear that a similar comparison can be made in the case of the Stables building and its close relationship with the agricultural barns but it does not have any close relationship with Dollars Grove Farmhouse. This can be clearly seen in the aerial photograph that is provided with Mr Goodall s advice and was submitted within the Heritage Statement. It was also pointed out that the correct extent of the curtilage of the farm house was clearly and correctly spelt out in the accompanying Heritage Statement. Mr Goodall provided an assessment of the setting and considered the effect of the stable building within the views from the listed farmhouse and concludes that the separation of the new building from the listed farmhouse is in itself sufficient to make it visually subordinate to the listed building and does not have an adverse effect on the setting of Dollars Grove Farm house. 3 The need for the agricultural accommodation The application was supported by a statement of the need for the accommodation for use by agricultural workers provided by David Kinnersley from Fisher German. The Council then forwarded a response from their advisor Mr Franklin from Landscope Land and Property. We provided a reply to those comments by letter dated 11 th June as well as correcting factual errors and misunderstandings. In that letter we again stressed the relationship between North Crawley Estate and Dollars Grove Farms as being two separate businesses, described the nature of the 2

3 properties available and the functional need for the units of accommodation now provided at the Stables. Mr Kinnersley has identified the staffing requirements and identified that the accommodation in the Stables would provide accommodation in the form of two studio flats and a small cottage. The description in the agenda report at paragraph 1.3 is incorrect and suggests that the studio flats are much larger than they really are. It is stressed that the application is for agricultural workers accommodation and the applicant would be willing to sign a section 106 agreement to that effect. Dollars Grove Farm farmhouse is occupied by the farm manager. This is an appropriate use of that dwelling but the manager and his family should not be expected to let out rooms to other employees. It is noted that Mr Franklin confirms the need for a second worker to be available on site but he is not in agreement over the need for two further workers, although he adds the caveat at this time. The evidence provided by Mr Kinnersley disputes this conclusion. The building the Stables was adapted to provide a flexible range of accommodation to suit a second full time worker who might have a partner and live in the cottage section, which is currently the case. However the opportunity was taken during the conversion to provide 2 studio flats that are ideal for the more seasonal staff and more temporary needs. Mr Franklin does allude to the fact that more accommodation might be needed in the future so it is a reasonable that the opportunity was taken when the Stables were being converted to provide the two studio flats. There are no other properties available for agricultural workers to occupy and it is irrelevant to the circumstances of this application how many properties North Crawley Estates might own in the area, as they are privately owned and not part of the agricultural business. From all of the information provided as part of the application we consider that the need for accommodation is clear and as stated by Mr Kinnersley the Stables will provide accommodation for its agricultural workers to enable the business to continue to succeed and provide long term employment opportunities in the area. 4 The Adopted Plan Policies The adopted Local Plan policies have been assessed within the Design, Access and Justification Statement submitted as part of the revised application. Policy S10 supports the provision of accommodation provided it is required to meet an essential need in relation to agriculture, forestry and countryside recreation. It is the applicants belief that the need for the variety of accommodation that is provided within the Stables is a proven need for agricultural workers, for immediate and also for longer term requirements. The Committee are being asked to grant permission for occupation by agricultural workers which can be restricted by the completion of a section 106 agreement. Policy HE5 refers to the setting of a listed building and this policy is examined both in the Design, Access and Justification Statement and by Mr Goodall in his supporting note. 3

4 The conclusions are that the Stables building as reconstructed does not adversely affect the setting of the listed building Dollars Grove Farm House. 5 The advice from the NPPF Due regard was paid to the advice in the NPPF and to paragraphs 28 and 55 and these comments are provided with the Design, Access and Justification Statement. Paragraph 5.1 of the Officer s report also quotes paragraph 55. It is our submission that to allow the retention of the Stables building and its variety of accommodation for use by agricultural workers would be in accordance with that advice and would provide a sustainable level of accommodation where it is needed, now and in the future. The planning application specifically requests the use of all three areas of accommodation for agricultural workers and this is the specific nature of the planning control that the Council will have when granting the application. The presence of property with agricultural ties is an important planning consideration. A temporary caravan would be removed from the site if permission is granted. I would be pleased to answer any queries that you may have after reading this letter and consulting the various reports that are part of the application. My contact numbers and are set out at the end of this letter. In view of the information presented on behalf of the applicants and the restricted nature of the occupancy I respectfully ask whether you would agree to the granting of planning permission subject to a section 106 agreement relating to agricultural occupancy, and suitable conditions. Yours sincerely Jennifer Lampert on behalf of Dollars Grove Farms EXTRACTS FROM A LETTER DATED 3 rd JULY 2012 TO MK COUNCIL FROM PLANNING EXPERT MARTIN GOODALL OF KEYSTONE LAW As I understand it, the Council s officers have asserted that this timber building was within the curtilage of the farm house and thus was included in the listing of the farm house itself. It is difficult to understand how this view could have been taken in light of the clear explanation of the correct position, as set out in the Heritage Statement submitted by DJC Associates in March of this year in connection with the planning application for the retention of the replacement building which has been erected on the same site. The farm house was first listed in February 1984, and it is clear from the listing description that the features of architectural interest were confined to the farm house itself ( House, early C19. Brick with corner pilasters, hipped slate roof, stacks flanking ridge, boxed eaves with bed mould. 2 storeys and cellar, 3 bays centre one slightly projecting, sash windows and central rectangular porch rendered with 4-panelled flush door, 4 pane fanlight, corner pilasters and entablature. ). In approaching the question as to the extent of the curtilage of the farm house, it is relevant not only to consider the definition of the curtilage itself as such, but also to consider first the identification and extent of the relevant planning unit. It is well understood that a farm house is 4

5 not an agricultural building and cannot therefore be erected as permitted development under Part 6 of the Second Schedule to the GPDO. A farm house is by nature and purpose a single private dwellinghouse, and as such the dwelling and the land occupied with it as part and parcel of the same planning unit necessarily falls within Use Class C3. This is not an agricultural use. The precise extent of the planning unit is to be determined by reference to the test laid down by Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally. For at least 30 years, and thus since before the listing of the farm house in 1984, the house has been tenanted by persons who have no proprietorial interest in the neighbouring farm. The tenants have had exclusive occupation of the farm house and its garden (lying mainly to the South of the house, and referred to in more detail below). As such, occupation of the farm house is separate and distinct from the occupation of the neighbouring farm. Consequently, the farm house, together with the land occupied with it, is the relevant unit of occupation. It is separate from the neighbouring farm both physically and functionally and therefore constitutes a separate planning unit, falling (as mentioned above) wholly within Use Class C3. As a separate private dwelling, the occupation and use of the farm house for exclusively residential purposes is not ancillary or incidental to the use of any of the neighbouring land. Equally, the neighbouring farm is not ancillary or incidental to the residential use and occupation of the farm house. 5

6 It is well settled law that the use of one planning unit cannot be ancillary to the use of any other planning unit (see Westminster City Council -v- British Waterways Board [1984] 3 All ER 737). It follows that a building within one planning unit cannot have a primary/ancillary relationship (in terms of its use) with a building on a separate planning unit, even if immediately adjoining. This alone would preclude a building in one planning unit being within the curtilage of a building in a different, though adjoining, planning unit. Bearing in mind the purely residential or domestic use of the farm house, one has to examine in that light the relationship (if any) to the house that any of the buildings in the farm yard might have had. According to the Oxford English Dictionary the curtilage of a building is : a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings. The practical interpretation of the term which is most widely accepted and applied is the following passage from the judgment in Sinclair-Lockhart s Trustees v. Central Land Board (1950) 1 P&CR 195 The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way. The timber building in question in the farm yard which collapsed (and was subsequently replaced) cannot be said to have served the purpose of the house in any necessary or useful way. Its function related solely to farming activities and it was not in any way associated with the residential use of the farm house. Thus it does not even meet the basic Sinclair-Lockhart test, nor does it conform to the dictionary definition, not being attached to the dwellinghouse, but being physically and functionally separate from it, not forming (or being regarded by the law) as forming one enclosure with the farm house and not being within the area attached to and containing the dwellinghouse. Neither this nor any other building in the farm yard could be described as outbuildings of the farm house, being wholly devoted to agricultural or other nondomestic uses. More recent judgments on the same issue do no more than reiterate the basic rule set out in Sinclair-Lockhart s Trustees. They have repeatedly stressed the need for the alleged curtilage to have a functional relationship with the dwellinghouse, which must necessarily be related to its residential use or associated domestic activities. Just one example will suffice. This was the judgment of Sullivan J (as he then was) in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin). The facts of that case were remarkably similar to the situation in the present case. Sullivan J did not accept the submission that either those buildings, or the group of four buildings including Mill Barn, were within the curtilage of the farmhouse. In 1984 there was a clear distinction between the farmhouse and its curtilage and the farmyard with its buildings, which included Mill Barn. The judge accepted that there will not necessarily be such a physical distinction in each and every case, but on the evidence of the aerial photograph and the Ordnance Survey, there was such a distinction in that case. The judge readily accepted that the farm was being run from the farmhouse in 1984, but the whole of the farm, and all the agricultural buildings upon it, could not sensibly be regarded as being within the curtilage of the farmhouse on that account. The primary use of the farmhouse was as a house. The farm, as a whole, was not listed, the farm house [original emphasis] was 6

7 listed, and its curtilage, as a house, was clearly defined by the wall which separated the residential use within the wall from the agricultural use that was being carried on in the agricultural buildings, including Mill Barn, and on the fields beyond. I understand that when pressed by the Panel, while they were considering the recent planning application for retention of the replacement building on the site of the former timber stables building, to show the curtilage of the farmhouse, the planning officer showed the 1880 Ordnance Survey map and asserted that all the farm buildings shown there were within the curtilage of the farm house. This clearly demonstrates a complete failure to understand the legal rules set out above, and is all the more inexplicable in view of the fact that the judgment in R (Egerton) v. Taunton Deane BC had already been drawn to the Council s attention in the Heritage Statement submitted in connection with that application. Furthermore, the correct extent of the curtilage of the farm house had been clearly and correctly spelt out in the Heritage Statement, where the development of the farm complex was also summarised. It was pointed out that, historically, the traditional C19 farm buildings formed courtyard groups to the north of the farmhouse, with the timber building the subject of the Council s current concern forming part of the eastern side of the southern courtyard, but that the majority of the older buildings were removed and replaced with large portal framed sheds, during the mid part of the C20, that is to say, before the listing of the farm house itself in 1984, thus disrupting any physical association between the former courtyard group and the farm house which might formerly be said to have existed. Attention was specifically drawn to the fact that the small enclosed yard area to the North of the house has changed little and separates the residential environment of the house from the agricultural activity associated with the farm buildings. The Council had also received with the Heritage Statement a copy of an article by the Legal Director of English Heritage, under the title Legal Developments Curtilage and Farm Buildings, in which he had himself referred to the Taunton Deane case. As he observed: The key point of interest was the way the judge approached function and use. He concluded: Although the layout of the buildings, their distance apart and the existence of physical boundaries between them were also factors in this decision, it is hard to see why this functional distinction (a farmhouse being a dwelling and farm buildings being agricultural) would not weigh heavily in all farm cases, even where the buildings were very much closer and no boundaries between them existed. In this case it could also be argued that non-domestic agricultural buildings attached to the farm-house are not protected by listing either. 7