PAPER B3

ISLE OF WIGHT COUNCIL DEVELOPMENT CONTROL COMMITTEE -

TUESDAY 27 AUGUST 2002

REPORT OF THE STRATEGIC DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES

TCP/8284L     Bluebell Haven (formerly Forest Haven), Wilmingham Lane, Freshwater, Isle of Wight

Summary

To review whether to proceed with the enforcement action regarding a failure to comply with an agricultural occupancy condition in the light of additional information submitted by the occupants.

Background

Members will recall considering a report of the 25 June 2002 Development Control Committee meeting considering whether the circumstances of the current occupants was sufficient to comply with the agricultural occupancy condition that was imposed on the dwelling when it was first approved in 1987. To recap, Members were presented with information regarding the circumstances of the current owners and occupiers which were based on the return of a Planning Contravention Notice and an interview held in November 1999 and information obtained at a further meeting with the owners in December 2001.

Following an assessment of the information by the Enforcement Team Leader in conjunction with the Council’s Senior Solicitor, and having taken external Counsel’s advice, a judgement was made that the information put forward was not considered sufficient for them to comply with the requirements of the agricultural occupancy condition and accordingly that enforcement action should be initiated.

Following the Committee resolution the occupants of the property attended a meeting with the Enforcement Team Leader and Development Control Manager. Concerns were expressed that they believed they were in compliance with the agricultural occupancy condition and accordingly, on 18 July 2002 a further Planning Contravention Notice was served asking specific questions on the time spent engaged in agricultural activity or in forestry on the land at Bluebell Haven or elsewhere on the Island. Members will recall that a Planning Contravention Notice is a mechanism through which the Local Planning Authority can obtain certain information to clarify whether or not a breach of planning control has taken place. The form does contain a warning that it is an offence knowingly or recklessly to give information in response to this notice which is false or misleading in a material particular.

The new PCN has provided the following information:

           •          1304 hours a year is worked on land at Bluebell Haven. (This equates to 25 hours a week).

           •          Working 100 hours a year elsewhere in agriculture or forestry on the Island. (This equates to 1.90 hours a week).

           •          Income from total agriculture or forestry activities - £3876 a year.

           •          Have spent £16,500 capital investment on the holding at Wilmingham Lane.

           •          Spent 800 hours clearing the land at Wilmingham Lane before any agricultural activity could start.

When the situation was considered at 25 June 2002 Development Control Committee meeting the information provided by the occupants was broken down to show that 21.78 hours were spent engaged in agriculture a week. The estimated income was £40 a week.

Members may also recall that the urgency behind the consideration of the report and the reason why the item has been brought back to this meeting is that the Council must serve any notice before 16 September 2002 otherwise there is a concern that the condition may have been breached for a period in excess of ten years and therefore be immune from action.

Financial Implications

If an Enforcement Notice is issued, an appeal then made and the Local Planning Authority cannot justify the action in the context of the information it currently holds or which may arise through the appeal process, then it runs the risk of an award of costs against it.

Options

           1.        To note the additional information now submitted and to accept the information put forward by the occupants of Bluebell Haven (formerly Forest Haven) and to advise them that in the Council’s opinion they are currently in compliance with the agricultural occupancy condition that applies to the property.

           2.        To advise the occupants of Bluebell Haven (formerly Forest Haven) that notwithstanding the additional information put forward, the Local Planning Authority remains of the view that it does not consider that the circumstances are sufficient for them to comply with the agricultural occupancy condition that applies to the property.

           3.        To advise the occupants of Bluebell Haven (formerly Forest Haven) of the intention to continue with the service of an Enforcement Notice regarding the failure to comply with the agricultural occupancy condition that applies to the property.

Conclusion

This report has been brought back to Members with additional information submitted by the occupants with regards to their compliance with the agricultural occupancy condition.

I believe the main issues for Members to consider are firstly, does the additional information presented by the occupants put a different complexion on the question of compliance with the agricultural occupancy condition and secondly, how much reliance should the Local Planning Authority give to this new information.

Regarding the first issue a comparison between the current and previous information, the new data clearly increases the time which the applicants claim they are spending in agriculture. As Members may recall from the earlier report, notwithstanding the relatively low level of income it is the application of time which is considered the greater indicator of compliance with an agricultural occupancy condition. On the basis that the information submitted is not being challenged then I believe that working 25 hours on the land at Bluebell Haven together with occasional work elsewhere which gives an average of 1.90 hours a week (grand total of 26.9 hours per week) is sufficient to comply with an agricultural occupancy condition as this would represent in excess of 50% of an individual’s normal working week.

Concerning the second issue on the reliance which the Local Planning Authority should give to this additional information I believe that this is an important factor to consider. On the one hand, the occupants have undoubtedly seen the earlier report which makes reference to a previous case at another location on the Island which was considered in May 1998. The report noted that at that time a person working 25 hours a week was accepted as being in compliance with the occupancy condition. I have spoken with the occupant and he has confirmed that the current figures are an accurate record. A letter has been received to this effect. I believe that the Local Planning Authority must accept the information that the occupants have presented unless there is something obviously at fault which would leave the information open to challenge. On balance, I do not consider that such a situation arises in this case.

Members may be concerned at the timing of any amendments to the current owner’s evidence. If Members doubt the veracity of the evidence, the only method of further examination of the information would be to continue with the enforcement action and for it to be attested should the occupants submit an appeal against the notice. If Members are minded to put the owner to proof by means of appeal they should be aware that the Local Planning Authority would be required to justify the action in the context of the current information it holds or what else may emerge during any appeal procedure. If unsuccessful, there is the possibility of a successful costs application being made against the Planning Authority if the Enforcement Notice is quashed.

Given the circumstances as outlined above I believe that the additional information does change the situation sufficiently for the Local Planning Authority to reconsider its earlier decision. Based on the new figures then I believe that the current occupants are in compliance with the condition and that the enforcement action as authorised at the 25 June meeting should now be withdrawn.

M J A FISHER

Strategic Director

Corporate and Environment Services