Agricultural occupancy conditions and ‘dependants’

The wording of the model agricultural occupancy condition (No. 45 in Appendix A to Circular 11/95, which remains extant following the cancellation of the remainder of that circular) has been widely used by many LPAs. It reads:

“The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependants”.

The question inevitably arises as to whether there would be a breach of such a condition where a member of the family living with the agricultural worker is not financially dependent on that person. The point was considered by the House of Lords in Fawcett Properties Ltd v Bucks CC [1961] AC 636, and the general impression derived from that judgment was that financial dependence was the qualifying criterion.

However, the question arose again in the case of Shortt v. SSCLG [2014] EWHC 2480 (Admin), in which judgment was given on 22 July. An LDC had been sought from the LPA on the basis of a continuous 10-year breach of the AOC, based on the fact that (a) the person actually working in the locality in agriculture had made a consistent loss in the agricultural enterprise throughout that period and (b) that, in consequence of this, the person’s husband was not financially dependent on her, and so could not be a ‘dependant’ for the purposes of the condition. The LPA failed to determine the LDC application, so the applicant appealed to the Planning Inspectorate under section 195.

The Inspector took what many would consider to have been a very sound commonsense approach to this issue. In his view, the appellant’s contention in reliance on Fawcett was an unnecessarily restrictive interpretation of the wording of the condition. In the context of people living in a family, the words subsistence and support are capable of having a non-monetary construction, he suggested. Furthermore, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financially dependent, it would leave members of a family who lived in a dwelling whose occupation was the subject of such a condition, but who were not themselves working in agriculture, at risk of enforcement action whenever the agricultural worker’s income fell below a level deemed to establish dependency, which would be a nonsense. The Inspector considered that the wording of the condition should be interpreted so as to avoid such a possibility, having regard to the potential impact on, or interference with, ordinary family life.

For the purposes of the High Court application, the judge assumed that Mrs Shortt was an agricultural worker, but made no profit from the farm in any year, and therefore made no financial contribution to the family. This was clear from the evidence of her accounts. After considering various statutory definitions of ‘dependant’ in other legislation, His Lordship observed that, so far as the definition of “dependant” is concerned, context is everything.

Turning to the decision of the House of Lords in Fawcett, in His Lordship’s view that decision was is itself equivocal as to whether “dependant” in the statutory context from which agricultural occupancy conditions derive necessarily requires an element of financial dependency. Various appeal decision had been called in aid by the applicant, but these were not entirely in her favour. For example, in one case (Land at Meadows, Colwell Road, Freshwater, Isle of Wight: Planning Inspectorate Appeal No App/C/96/P2114/643380), the Inspector did not consider that “the condition could be construed as excluding a married couple, one of whom works outside agriculture”, where the agricultural worker appears to have earned nothing from that enterprise. Therefore, His Lordship held, even in the statutory context (or a context in which the precise statutory wording had been adopted), there is no clear authority to the effect that “dependant” necessarily implies financial dependency.

The wording of the condition in the present case differed slightly from the model condition, and this appears to have had a material effect on the judge’s decision. The condition did not simply refer to agricultural workers and their dependants, but agricultural workers and “the dependants (which shall be taken to include a widow or widower) of such persons”. So “dependants” here were deemed to include a widow or widower of an agricultural worker, whether or not, before that worker’s death, the spouse was financially dependent upon him or her. It would strain the construction of the condition too far for it to mean “the dependants (which shall be taken to include a widow or widower who was, prior to the agricultural worker’s death, a financial dependant of that worker)”.

Given that “dependants” may or may not include dependency other than financial dependency depending upon the context of the word, it seemed to His Lordship that, if the term is to include a widow or widower irrespective of earlier financial dependency, looked at objectively, it must have been intended to have included a husband or wife without financial dependency. In his view it could not have been the intention of the condition to prohibit spouses who are not financially dependent upon an agricultural worker from occupying the dwelling during the worker’s life, but allow such spouses to occupy it after the worker’s death.

Therefore, the words as used in the condition, looked at as a whole, appeared to His Lordship to envisage “dependency” in a wider and more open-textured way than one requiring an element of financial dependency, certainly to include a spouse and minor children of the worker who is their wife and mother and who provides them with usual family services and care.

To that extent it could perhaps be argued that this judgment is dependent on its facts, that is to say, on the precise wording of this condition. The judge himself pointed out that he was restricting himself to construing the particular condition in this case. It was unnecessary for him to seek to construe “dependants” in the statutory context, and he declined to do so. No doubt he was unwilling to be seen to be differing from a House of Lords decision, but Fawcett was decided over 50 years ago in a very different social and economic context, and a broader interpretation of “dependants” may now be more appropriate, not least because a narrow interpretation could throw up some undesirable and even nonsensical anomalies in such cases, as the Inspector pointed out.

It remains to be seen how much weight can be placed on Shortt as an authority on this issue, but I suggest that Fawcett, even though it was a House of Lords decision, should no longer be uncritically accepted as authority for the proposition that, in the context of an AOC, the interpretation of “dependant” is necessarily confined to financial dependants. It should reasonably be taken to include those in a family relationship with the agricultural worker living with them, such as spouses and even perhaps adult children, even though those persons are financially independent.

© MARTIN H GOODALL

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Do cruising men ever wash

A READER IN OHIO is having wife trouble. “Old Salt” says his wife complains that cruising on their sailboat is hazardous to their health because Old Salt never washes, and he wears the same clothes day in and day out. “But I remember that you once wrote a column about sailing hygiene,” says Old Salt. “Would it be a good idea to repeat it, for my wife’s benefit?”

Oh my goodness yes, Old Salt. It would be a wonderful idea. It saves me having to think of a new idea.

So here it is, five years old now, but still pretty much up-to-date, I believe:

Cruising hygiene

DO MEN CHANGE THEIR UNDERPANTS while cruising? A young woman reader in Dade County, Florida, wants to know. Geraldine says her new boyfriend has invited her on a six-week cruise to the Bahamas on his Cape Dory 25D sailboat. She has not sailed before, but she is fine with everything — except what she suspects might be a hygiene problem.

Do men on small boats change their socks? she asks.

Do they EVER wash ANY clothes?

Do they wash their hands after going to the head?

Do men brush their teeth morning and night?

Do they ever change the bed sheets?

Do they even HAVE bed sheets?

Well, Geraldine, you have poked your little stick into a big hornets’ nest here. Obviously I can’t answer for all cruising men, and as far as I know nobody has conducted research into this subject. But if it’s any comfort, as far as I know, not many cruising men die from bubonic plague or big bad germs in the gut.

I can only tell you of my own experience of long-term cruising and the answer to your first question is yes, men do change their underpants every day, one pair a day for seven days. Then, on the eighth day they start over. The theory is that the underpants have aired for a whole week, which is plenty of time for any germs to jump off and go somewhere else.   

Socks? Mostly we don’t wear socks, but even if we do, we only have two pairs. They’re good for seven days before rotation. We don’t walk anywhere, you see, so there’s no sweat or anything objectionable. You’ll notice that no men ever complain about other men’s socks.

Washing clothes? Well that depends on the availability of fresh water (very rare) and a place to do the washing (also rare). It depends on the weather and the amount of rail space available for drying. It depends when you can find the time, when you have a whole lot of other things to do (such as steering around rocks and anchoring and reefing and navigation) that are a lot more important than washing clothes. So, in short, the answer is ... well I have known one or two men who have washed some cruising clothes, so it’s not completely unknown.

As for washing hands after using the head, I have to assure you that it’s a distinct possibility in a boat like yours that has a wash basin in the head. Of course, most men won’t use it for fear of running out of fresh water, but at least there is a definite possibility; and that surely must cut down on the odds of disease erupting.

Do men brush their teeth morning and night? Geraldine, I think it is a scientifically accepted fact that as long as you break up the plaque every 24 hours, one brushing a day is sufficient. And, by happy discovery, a large body of cruising men has found that swilling the mouth with gin just before bed is equally as efficient in the prevention of tooth decay as is brushing with toothpaste.

As for bed sheets, well that depends on the sissy factor. Real men don’t use bed sheets. They use rough, hairy, woolen blankets or sleeping bags designed for Mt. Everest. I confess that I have a sort of sheet for my sleeping bag, a removable cotton liner, but after you’ve slept in it for two months straight I’ve noticed that it seems to grow little lumps inside like a real woolen blanket, so it’s really quite macho and not as pooftah as you might think.

Geraldine, you can spend too much time worrying about hygiene. There are places in Europe where they only take a bath once a week. There are places in the Sahara where they never bathe. It’s true that their average lifespan is 23 years, but nobody has ever actually proved it’s because of lack of bathing.

On the whole, you will find that the cruising life is very healthy. Strong sunshine and salt water are very good at killing germs. And those few germs that don’t die immediately will surely succumb when they eventually drift down and get swallowed up by that seething, squirming mass of micro-wildlife in your bilge.

Go for it, Geraldine. Go for the beautiful beaches and the glorious crystal-clear water; go for the romantic tropical nights and the soft trade winds brushing the coconut palms in silver moonshine. And let hygiene take its chance, as Nature intended.

Today’s Thought

A man’s own observation, what he finds good of and what he finds hurt of, is the best physic to preserve health.

— Bacon, Essays: Of Regimen of Health

Tailpiece

A yacht club barman I know has invented a drink called the Block and Tackle. It’s one third whiskey, one third brandy, and one third vodka. After two of those you’re ready to run around the block and tackle anything.

(Drop by every Monday, Wednesday, Friday, for a new Mainly about Boats column.)

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Sorting out the urethanes

I’VE DONE MY FAIR SHARE of painting boats, both wooden and fiberglass, but I was only vaguely aware of the difference between polyester urethane and acrylic urethane. However, I was looking through some notes the other day and came across a copy of an e-mail that explains things quite nicely.

I believe I originally found it on the Cape Dory bulletin board. In any case, it was posted by someone called Brandon, of Fort Lauderdale, who owned a 1985 Cape Dory 25D called Seamona. Here is what he had to say:

“The difference between the two, without getting long and boring boils down to this:

“Polyester urethane molecules are much smaller than acrylic molecules. So when they cure, the polyester urethane forms a tighter matrix, which gives a harder, more abrasion-resistant film, with better chemical resistance than acrylic.

“Acrylics are more forgiving in application, trap less dust, and are buffable. When an acrylic urethane is buffed, due to the lower cross-link density the melting point of the resin is much lower, i.e., it is softer. When buffing is carried out the resin-rich layer "melts" and reflows into the scratch. It is possible to retain an intact resin-rich layer at the surface protecting the pigments, and not losing significant thickness. The edges of touch-ups can be blended carefully in the same way. Long-term performance is not affected, as much of the resin layer remains.

“With the polyester urethane, the paint is a very hard, rigid film, and to get rid of a scratch you need to cut deeply into the paint, leading to the exposure of the pigments. This looks shiny to begin with but the long-term performance of the finish is now compromised.
“I am currently following the build of a 95 footer in Viareggio, Italy. We are using Awlcraft (Snow White), and almost finished painting her. I am happy to use the acrylic because we have found fairing issues on the hull, even with the white paint, and with the acrylic we can re-fair this 6-square-foot area, reshoot the area, and blend in. We dont have to repaint the entire 95-foot topside as we would with the polyester!

“OK . . . so maybe I got long and boring.”
Today’s Thought

Paintin’s not important. The important thing is keepin’ busy.

— Anna Mary Robertson Moses (“Grandma Moses”)

Tailpiece

Mary has a cool, cool gown,
It’s almost slit to bits.
Who gives a damn for Mary’s lamb
When we can see her calf?

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Further planning changes put off until after the General Election

In the interval between Christmas and the New Year, De-CLoG sneaked out its “Ninth Statement of New Regulation: January to June 2015”, which (if what it says on the tin is to be believed) lists all the subordinate legislation that De-CLoG ministers intend to bring into force between 1 January and 30 June 2015. The word “all” is not actually used in the document, but it is reasonable to assume that if the government had a firm intention to introduce any other measures before the General Election they would have been included in this document.

The statement is therefore unintentionally revealing in having omitted a number of significant planning changes which were loudly trumpeted by ministers last year, and which would certainly have been included in the list of forthcoming measures if the government still intended to bring them forward before the General Election.

Among the previously proposed changes about which the document is deafeningly silent are further amendments to the GPDO to enable more changes of use in addition to those previously introduced within the past two years. These were expected to include the change of use of light industrial units (B1(c)), warehouses and storage units (B8) and some sui generis uses (launderettes, amusement arcades/centres, casinos and nightclubs) to residential use (C3), and changes of some sui generis uses to restaurants (C3) and leisure uses (D2).

There is no mention, either, of the government’s intention to make permanent those permitted development rights which currently expire in May 2016. We had been promised that the existing time limit for completing office to residential conversions would be extended from 30 May 2016 to 30 May 2019. It doesn’t look as this is going to happen this side of the General Election. The same applies to the right to build larger domestic extensions (under Part 1), currently expiring in May 2016.

Another measure that it seems will not be coming forward is the right to make alterations to shops, so as to allow retailers to alter their premises, plus additional PD rights covering (among other things) further extensions to houses and business premises, over and above existing permitted extensions.

Turning to the Use Classes Order, there is no mention of the proposed merger of Use Classes A1 and A2 in a single new ‘town centre’ use class. This was expected to be accompanied by a further amendment of the GPDO to allow change of use to the widened retail (A1) class from betting shops and pay day loan shops (A2), restaurants and cafés (A3), drinking establishments (A4), and hot food takeaways (A5). Similarly there is no mention of the intended restriction of the scope of the current A2 use class, so that betting offices and pay-day loan shops (both currently falling within this Use Class) would become sui generis uses.

Another measure of which no mention is made is the suggested increase in floorspace in a building in retail use (including the introduction of mezzanine floors), currently limited to 200 sq m, that can be made without its coming within the definition of development under section 55 (and therefore requiring planning permission). [I thought the original provision in the 2004 Act had been brought into force with effect from 10 May 2006, but I haven’t been able to put my finger on the SI which confirmed this limit, and have begun to wonder whether this provision in the 2004 Act is actually in force. Perhaps someone can enlighten me.]

There is one measure (relating to a proposed reduction in qualifying time for the Right to Buy scheme) which has been pencilled in for April 2015, but is flagged up as being “dependent on the Deregulation Bill”. The same would apply to the previously announced intention to relax section 25(3) of the Greater London (General Powers) Act 1973, so as to allow some types of short-term lettings in Greater London that are currently prohibited by that sub-section of the 1973 Act. But in this case, there is no mention of the proposed measure in the De-CLoG statement. Is this another measure that has bitten the dust?

Perhaps it was the realisation that these various measures could not now be brought forward before the General Election that led to George Osborne refraining from re-announcing them yet again in his Autumn Statement.

In Cloud-cuckoo-land, where Tory members of our coalition government seem to live, it is confidently expected that the government will be able to introduce these various measures after the General Election, and in the meantime they will no doubt feature as commitments in the Tory Party election manifesto. In the real world, where the rest of us live, the survival of the present government after May seems a little less than probable. An incoming government of a different political composition may not wish to continue with these proposals, and so this may be the end of the road for the present government’s planning ‘reform’ agenda.

UPDATE: I am grateful to Sally Davis of G L Hearn and to Ray Tutty of Savills, both of whom kindly emailed me with a note of the provision that I had been unable to find, which specifies the limit for internal enlargements of retail floorspace. This was Article 4 of the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006, which inserted Article 2A in the original DMPO stating that the amount specified under section 55(2A) of the Act is 200 square metres. Any change in this floorspace limit would therefore be by means of a further amendment of the DMPO. It would still be possible for this change to be made in the time available, but its omission from the statement of forthcoming subordinate legislation suggests that the government may not see it as a priority.

NOTE: As readers are no doubt well aware, the coalition government did manage at the last minute to make the promised changes to the GPDO. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

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