Appeal Victory

On August 11th 2008 the follow decision was published by the planning inspectorate allowing Mark Simon to continue to live at Trevalon.

Appeal Decisions
Inquiry held on 9/10 July 2008
Site visit made on 10 July 2008
by Roger Priestley BA(Hons) DipTP MRTPI FRGS
The Planning Inspectorate
4/11 Eagle Wing
Temple Quay House
The Square
Temple Quay
Bristol BS1 6PN
0117 372 6372
email:enquiries@pins.gsi.gov.uk
an Inspector appointed by the Secretary of State
for Communities and Local Government
Decision date:
12 August 2008
Appeal Refs: APP/K0805/C/07/2058055 and 2058053
Trevalon, Herodsfoot, Liskeard PL14 4RS

• The appeals are made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
• The appeals are made by Mr Mark Simon (ref. 2058055) and Orchard Land Trust Ltd
(ref. 2058053) against an enforcement notice issued by Caradon District Council.
• The Council's reference is MA/LI/041136.
• The notice was issued on 17 September 2007.
• The breach of planning control as alleged in the notice is (i) the unauthorised residential use of a static caravan and (ii) the unauthorised siting of a storage container.

• The requirements of the notice are :
(i) Cease the residential occupation of or remove the static caravan from the site; and
(ii) Permanently remove the storage container from the site.
• The period for compliance with the requirements is 2 months.
• The appeal by Mr Mark Simon is proceeding on the grounds set out in section 174(2)(c)and (g) of the Town and Country Planning Act 1990 as amended. The ground (c) appeal relates to the storage container only.
• The appeal by Orchard Land Trust Ltd is proceeding on the grounds set out in section 174(a), (c) and (g). The ground (c) appeal is likewise made in respect of the storage container only.

Appeal Ref: APP/K0805/A/07/2058497
Trevalon, Herodsfoot, Liskeard PL14 4RS
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by Orchard Land Trust Ltd against the decision of Caradon District Council.
• The application Ref 07/00175/FUL, dated 1 February 2007, was refused by notice dated 3 May 2007.
• The development proposed is mobile home, for residential use by key agricultural
worker, as workers rest room and office.

Decisions
The s.174 appeals
1. I direct that the enforcement notice be corrected by the deletion of allegation
(i) and the substitution of “a material change to a mixed use for agriculture and
for the stationing of a caravan for residential purposes”. I allow the appeal on
ground (a) insofar as it relates to the residential caravan and I grant planning
permission on the application deemed to have been made under section 177(5)
of the 1990 Act as amended, for the stationing of a caravan for residential
purposes subject to the following conditions:
(a) The use of the land for the stationing of a caravan for residential
purposes, as hereby approved, shall be temporary and the
residential use shall be discontinued and cease on or before the
expiration of 3 years from the date of this decision or upon the
cessation of the caravan’s occupation by Mr M Simon and his
dependants.
(b) The occupation of the caravan shall be limited to a person solely or
mainly employed on the agricultural unit at Trevalon in agriculture
and to any resident dependants.

2. I direct that the enforcement notice be varied by the substitution of 12 months
for 2 months in the time for compliance in clause 6. I dismiss the appeal and
uphold the enforcement notice as corrected and varied insofar as it relates to
the storage container, and I refuse planning permission in respect of the
storage container, on the application deemed to have been made under section
177(5) of the 1990 Act as amended.
The s.78 appeal

3. I allow the appeal, and grant planning permission for the stationing of a mobile
home, for residential use by key agricultural worker, as worker’s rest room and
office, as already carried out at Trevalon, St Keyne, Liskeard PL14 4RS, in
accordance with the terms of the application, Ref 07/00175/FUL, dated 1
February 2007, and the plans submitted with it, subject to conditions set out
above.

Procedural matters

The allegation

4. A material change of use is alleged in relation to the siting of a caravan for
residential purposes. The parties are agreed, however, that the notice should
more accurately describe a mixed use reflecting the agricultural use of the
land. I shall correct the notice to this effect and am satisfied that I can do so
without causing injustice.

The requirements

5. Insofar as the static caravan is concerned the requirement is to either cease
the residential occupation or remove the caravan from the site. At the
commencement of the Inquiry the Council asked that this be varied so as to
require both the cessation of the residential use and the removal of the static
caravan from the land.

6. The injustice argument for the appellants has force in that implementation of
such a variation would place them in a worse situation than if the notice had
not been appealed. It follows that I do not intend to vary the notice. In any
event I am alive to the extent to which the caravan as a matter of fact is
arranged and used as a farm office by Mr Simon. The strong likelihood is that
should residential use not be permitted then use as a rest room and farm office
would continue. At the inquiry attention was drawn in this regard to the findingin Wealden DC v. SSE and Day [1986] that a use for the purposes of storage,shelter and food preparation was ancillary to the primary agricultural use such that no development or breach of control had occurred.

The s.78 appeal – description of development

7. The application as submitted was for a mobile home for residential use by key
agricultural worker, as worker’s rest room and office. The Council’s revised
wording which appears in the refusal notice would not appear to have been
agreed by the appellant at any stage and I shall therefore proceed on the basis
of the application as initially described. As the development has already
commenced I shall consider the application as retrospective, relating to an
application made under s.73A of the Act, as amended.

The site visit

8. My site visit was carried out during the morning of 10 July. Mr Taylor of The
Byre, Coombe farm, St Keyne and Mr and Mrs Wright of Coombe Farm House
arrived at the site at the appointed time but Mr Simon was unwilling for them
to be on his land. I indicated that I would proceed at the site itself
accompanied by the principal parties only. Mr Taylor complained at being
excluded but I explained that the inquiry had adjourned and that I would not
be hearing evidence. At the same time I agreed to a request to view the land
afterwards from Coombe Farm House and Coombe Barn (Mr Mallard). Mr and
Mrs Wright and Mr Mallard were opposed to Mr Simon being present on their
land. Both Mr Simon and Mr Andrews, the Council’s representative, were
agreeable for me to continue with this part of my visit in their absence. These
procedural arrangements were explained when the inquiry resumed.

Background

9. Trevalon Organic Vegetables is an organic horticultural enterprise established
by Mr Simon, company secretary of Orchard Land Trust Ltd which purchased
the 7.39 ha of land in 2005. When the enterprise was established Mr Simon
was living at Portwrinkle some 9 miles to the south east; he moved to the site
in February 2007. Trevalon is now registered with the Soil Association and
received full organic status in September 2007. The first full season of
vegetation production was in 2006/07 when 0.6ha were cultivated. At the time
of the inquiry some 1.6ha were being used for vegetable production. Two
polytunnels are in use and also a propagation polytunnel. An area of fruit trees
and bushes has also been planted and a barn nears completion. Planning
permissions have been granted for the erection of further polytunnels. Two
people are employed on Wednesdays and Thursdays when delivery of boxed
vegetables takes place and three customers work on a casual basis in exchange
for vegetable boxes. There is also currently, for 8 weeks, a volunteer worker
from France who occupies one of 4 tourer-type caravans on the land. Another
of these caravans is used for the storage of cardboard boxes prior to their use.
The ground (c) appeals – The storage container

10. The metal storage container measures some 6.1 metres in length, 2.4 metres
in width and 2.4 metres in height. It weighs around 3 tons and rests on
railway sleepers. It was off-loaded by crane when it was brought to the site in
September 2006 and has not been moved since. It is used as a vegetable storage / packing facility.

11. When considering that the container has been in the one position since being
moved onto the land, its size, substantial weight and the resultant likelihood
that it could not be moved without the use of a crane or similar lifting gear, I
find as a matter of fact and degree that its siting has amounted to operational
development. I find close comparison with the Thurrock and Rochdale decisions which the Council have drawn to my notice. I appreciate that in the ‘Twin Oaks’ case handed in for the appellants the Inspector found a container and van body to amount to a use of land, but as there is little information apart from the indication that the container in that instance was small I am unable to ascribe that case any significant weight.

12. The present container cannot amount to a temporary building under Part 4
Class A of the GPDO since planning permission has not yet been granted for a
permanent storage / packing facility [proviso A.1(b)]. The container,
moreover, does not store materials or equipment connected with the pole barn
now nearing completion and is unrelated to the construction of that barn. The
appellants cannot benefit from the provisions of Part VI of the GPDO since the
container was plainly not designed for agricultural purposes. It follows in these
circumstances that the ground (c) appeals fail.

The s.174 ground (a) appeal, the deemed application and the s.78 appeal
The caravan

13. I address these appeals together since in effect they concern the same
development, and consider the main issue to be the agricultural need for the
residential accommodation on the holding bearing in mind prevailing planning
policies and in particular the advice set out in Annex A to Planning Policy
Statement (PPS) 7 – Sustainable Development in Rural Area. Although not
clear from the application form it was made plain for the appellants at the
opening of the inquiry that a temporary permission was sought. I proceed on
this basis.

14. Annex A to PPS7 in relation to temporary dwellings sets out in paragraph 12
the criteria which should be satisfied for planning permission to be granted.
Criterion (i) calls for clear evidence of a firm intention and ability to develop the
enterprise and the Council take no issue on this point. Given Mr Simon’s
experience living and working full-time on an organic farm that grew
vegetables for a box scheme before moving to Cornwall, and the extent to
which the existing enterprise, incorporating the provision of the polytunnels
and the barn, has already developed, I see no reason to conclude otherwise. I
reach this view having taken into account the concerns of a local resident as to
continuing piecemeal development. I have also borne in mind the article about
Trevalon in the Telegraph Magazine which refers amongst other things to the
‘Community Farm’.

15. Criterion (ii) concerns functional need. There is at present on the holding a
predominance of salad crops, and cultivation and harvesting is almost
continuous. Mr Simon raises his own transplants and I can appreciate that by
doing so plants such as sweetcorn which I heard is particularly sensitive can be
re-planted when they have reached their optimum growing point and when soil
and weather conditions are most appropriate. It is plainly imperative to maximise efficiency.

16. A thermostatically controlled gas heater is used in the propagation tunnel,
connected to an alarm that will alert Mr Simon when the temperature drops
below 3º. I fully accept that this could require action late at night or in the
early hours of the morning during March and April when a large number of
seedlings are being propagated. As to crops growing outside the polytunnels I
can appreciate also that specific localised conditions might not necessarily be
reflected in meteorological predictions and have noted that Mr Simon has
placed a fleece over crops at midnight when a frost was expected so as to allow
him to harvest the crop the next day.

17. This, moreover, is an exposed site and I heard that Mr Simon once saved the
polytunnels by moving 200 bales of hay up the hill in the middle of the night to
form a wind break. A polytunnel frame of the variety used at Trevalon and
costing around £1000 could be saved from contortion by cutting the plastic and
I accept that such an eventuality could only be properly watched for by on-site
presence. Weather conditions were atrocious on the first day of the inquiry
when Mr Simon was necessarily away from the holding for several hours. The
agriguard covering was in part blown off and I saw the next morning that the
crops which had been left exposed had been badly affected by pests, in all
likelihood, rabbits. That said, I do not attach weight to the threat to outdoor
crops from stock from neighbouring farms as I believe that this could be
prevented by attention to gateways.

18. There is also a security factor here, albeit by itself of limited weight. During
the first year of the operation prior to Mr Simon moving onto the site half a
dozen incidents occurred, reported to the police, including an arson attack on a
caravan, the theft of a post box and a gate lock being super-glued. There have
been no such incidents since Mr Simon moved onto the site in February 2007.

19. The role of routine jobs on the holding is also material when considering the
hours involved. Irrigation in the height of summer takes some 2½ hours both
morning (07:00 – 09:30) and evening (18:30 – 21:00); as much as 10,000
litres of water can applied per day on a schedule involving altering pipes every
half hour. Efficiency is again important since the water source is a tank filled
steadily by a spring and once empty takes all day to fill. The early morning
work at Trevalon also involves the harvesting of salads and other leaf crops
such as spinach and chard when they are cool and full of moisture. Taking all
these factors together, I consider it to be essential for the proper functioning of
the enterprise for someone to be readily available at most times.

20. Criterion (iii) requires clear evidence that the enterprise has been planned on a
sound financial basis. A business plan was prepared in January 2007 setting
out the nature of the organic horticultural enterprise including the vegetable
box proposals, the wholesale of vegetables and salads, and the diversification
into fruit trees/soft fruits. Much progress has been made.

21. Having said that, the profit and loss projections were overly optimistic. The
demand for boxed vegetables has exceeded what has been available from the
holding and the amount of bought-in produce has been greater than
anticipated. The draft accounts, moreover, for 2007/08 show that if the
bought-in produce for that year were deducted there would have been anoverall loss rather than profit. The information in this respect supplied on the second day of the inquiry showed that boxed deliveries for the first week of July 2008 totalled in value some £344 of Trevalon produce and approximately £277 of produce bought-in and then marked up for re-sale. Mr Simon concedes that there is “a hole in his record keeping. I am conscious, however, that there were difficult conditions in the summer of 2007 with high rainfall experienced. I am mindful also that Mr Simon’s business partner Mr Cavendish left during the winter of 2007/08 and that as a consequence he has had to undertake a larger proportion of the work himself.

22. Despite these setbacks and the limited detail at this stage on the split between
Trevalon and bought-in sales, I am content that the enterprise nonetheless has
been planned on a sound financial basis. Paragraph 1.47 supporting Local Plan
countryside housing Policy H07 states in terms that temporary accommodation
may be granted for up to 3 years to allow an applicant the time to demonstrate
that the business is sustainable.

23. Turning to criterion (iv), the suggestion that the appellant looks to rent a
dwelling in Liskeard or nearby village which has a greenhouse or similar facility
for plant propagation or which has space in a garden for a structure to be so
used, is to my mind unrealistic. Without an on-site presence Mr Simon would
be unlikely to propagate his own seedlings, and, irrespective of additional cost,
the efficiency of the enterprise would be compromised. His capital, moreover,
has gone into the business and additional polytunnels which have received
planning permission are proposed. I can well understand Mr Simon’s concerns
as to the viability of the enterprise in the context of the likely costs of renting
alternative accommodation in the area. Mr Simon, moreover, has 2 sons aged
9 and 11 in his care 3 to 4 days a week and, albeit a personal consideration
carrying more limited weight, this is nonetheless material in the context of the
long working day at Trevalon. I am not therefore satisfied that the functional
need could be met by other accommodation which is suitable and available.

24. Annex A criterion (v) requires other normal planning requirements to be met
and in this regard I have considered the objections of the Council and others as
to the visual impact of the caravan in what is designated locally as an Area of
Great Landscape Value (AGLV). It falls within the South Caradon Landscape
Character Area. The caravan is situated on high ground above the well wooded
and heavily incised valleys of the East and West Looe rivers. Even so, and
whilst recognising that my inspection took place in mid summer with trees and
hedges in full growth, views of the caravan from public vantage points are
limited. The enforcement notice as I have explained does not seek the removal
of the caravan and in any event if a residential use is not permitted then the
use of the caravan for purposes ancillary to horticulture would be likely to take
place. This is a pertinent fall back position, and against this background I find
no substantive landscape objection.

25. The requirements of Annex A paragraph 12 in relation to temporary
accommodation are met; a temporary permission would be consistent with the
objectives of Policy HO7.

The storage container

26. The key issue here is visual amenity, and the container is similarly situated on
high ground. Mr Simon concedes that it is not a pretty structure but seeks a
temporary permission pending the provision of a more permanent facility.
Whilst aware that he would be prepared to either clad it or paint it, and against
the background of ‘saved’ Policy CL9 and Structure Plan Policy 2 which seek to
protect the character of AGLVs, I am not persuaded that express consent for
the container, even on a temporary basis, would be appropriate in this setting.
Summary on ground (a), the deemed application and the s.78 appeal

27. The appeals in relation to the residential caravan succeed on the basis of the
horticultural need. Of lesser significance are the ecological arguments made
for the appellants in the context of the Planning and Climate Change
Supplement to PPS1 and the permaculture principles which are applied.
Furthermore, the sustainability benefits of living on-site would need to be
weighed against the need for journeys to school and other community facilities
in and around Liskeard. Neither these factors nor the question as to whether
or not the restaurant ‘Fifteen Cornwall’ is supplied by produce from Trevalon
alter the balance of my conclusions. The ground (a) appeal and the s.78
appeal in relation to the caravan succeed. Ground (a) on the storage container
fails.

The ground (g) appeals – The storage container

28. An 18 month period is sought to enable an application to be submitted for a
storage barn, for permission to be granted and for it to be erected, but
balanced against the degree of harm and conflict with CL9 and SP Policy 2 this
would be excessive. Mindful, however, of the degree to which Mr Simon has
liaised with the Council from the outset and taking into account what seems to
me to have been a constructive meeting between the principal parties a few
days before the inquiry, I consider it reasonable to extend the compliance
period to 12 months to enable a more appropriate solution to come forward.
To this extent the appeals on ground (g) succeed.

Conditions

29. Despite the fact that residential use of the caravan has already commenced I
believe it to be reasonable and appropriate to attach a 3 year limit rather than
2 years as suggested by the Council and to this end I shall adopt a condition on
the lines attached to the permission in the Sydling Brook appeal. I also attach
the suggested agricultural occupancy condition.

Roger Priestley
Inspector

APPEARANCES
FOR THE APPELLANTS:
Ms J Sargoni South West Law, 1 Hide Market, West Street,
Bristol, BS2 0BH
She called
Mr W J Knight BSc Keveral Farm, St Martins, Looe, PL13 1PA
(Ecological Footprint)
Ms R Laughton BSc MSc Agricultural Consultant, Tamarisk Farm, West
Bexington, Dorchester, DT2 9DF
Mr M Simon Appellant and Company Secretary, Orchard Land
Trust Ltd, Trevalon, St Keyne, PL13 4RS
FOR THE LOCAL PLANNING AUTHORITY:
Mr P Barkley Solicitor, Caradon District Council
He called
Mr M V Andrews BSc
(Hons) DipTP MA(Dist)
DMS MRTPI MCIM
Assistant Head of Development Control, Caradon
DC
Mr J Alford MRICS Chief Land Agent, Cornwall County Council
DOCUMENTS
1 The Council’s letter of notification of the Inquiry.
2 Bundle of correspondence from Mr P Taylor.
3 Extract from Committee Minutes, 6 September 2007
4 Sales, including box deliveries 2/3 July 2008
5 Suggested planning conditions
PLANS
A(i) The plan attached to the enforcement notice
A(ii) The application plans (1-3)