Analysis

 

Below is my analysis of the planning issues involved in the Cwmbetws Ltd application.
If anyone spots a flaw in any part of this analysis they can email their thoughts to oldgrumpy.mike@virgin.net.
I can assure them that, in the spirit of free and open discussion, their criticisms will be published, unedited.
It would be particularly enlightening to hear from Chairman of Planning, Cllr Bill Hitchings, who seemed inordinately keen to push this application through with the minimum of debate.


To summarise, there are three tests to be satisfied before an agricultural consent can be given:

1. There must be a functional need for someone to live on the spot.

2 The dwelling should be of a size that the farming enterprise can sustain, economically, and

3. The size of the dwelling should be of a size commensurate with the functional need identified in 1. above.

It is clear from the planning policy that all three tests must be passed.

The starting point is the county council's planning policy HS 9 which deals with the matter of new developments in the open countryside.

It reads: "Proposals for new residential development in the open countryside will not be permitted except where it is clearly needed to house a worker in agriculture or forestry who must live on the spot rather than in a nearby settlement. In such cases, the applicant must prove to the satisfaction of the local authority that it is essential for the proper functioning of the enterprise concerned that the worker must live on the spot due to the nature of the activity he performs. In cases where the local planning authority considers that additional information is required to prove the "genuineness" of the case being made, evidence will be requested to demonstrate that an existing enterprise is financially sound, or that a proposed business has been planned on a sound financial basis. New dwellings will normally be expected to form part of the complex of farm buildings in terms of siting, scale, design and materials. Occupation of the dwelling shall be limited to a worker so employed."
Most agricultural applications involve an area of bare land which the owner wishes to turn into a farmstead by building a house.
In the case of Cwmbetws we have the relatively rare situation where a farmhose already exists and the application is for an additional dwelling.
According to the council's guidlines on policy HS 9, in such situations the council, in order to establish the "genuineness" of the application, may seek "additional evidence" that there are " proposals for major changes in the nature or scale of existing enterprises."
If those conditions are satisfied, attention moves to stage two of the process, the tests for which are set out in the Welsh Assembly Government's Technical Advice Note (TAN) 6, paragraphs 46 and 47.
These read:
"46. New permanent accommodation cannot be justified on agricultural grounds unless the farming enterprise is economically viable. A financial test is necessary for this purpose, and to provide evidence of the size of dwelling which the unit can sustain.
47. Agricultural dwellings should be of a size commensurate with the established functional requirement. Dwellings which are unusually large in relation to the agricultural needs of the unit, or unusually expensive to construct in relation to the income it can sustain in the long-term, should not normally be permitted. It is the requirements of the enterprise rather than of the owner or occupier which are relevant to determining the size of dwelling that is appropriate to a particular holding."
So much for the rules.
We can now turn our attention to the facts of the case in order to determine the extent to which they fit the bill.
Clearly, unless it can be shown that the dwelling is required to house a worker who "must live on the spot due to the nature of the activity he performs", the application is dead in the water.
In the present case there is already an existing farmhouse available for a worker who needs to live on the spot, so, in order to justify a second dwelling, it is necessary to demonstrate the need for TWO workers to live on the spot.
Furthermore, according to the report to planning committee, the farm as it is presently organised (and has been for the past several years) is generating "a healthy profit".
And, as there is no evidence of "proposals for major change in the nature or scale" (see above) of the existing enterprise, it is difficult to see where the agricultural necessity arises for this extra dwelling.
All I could find on the file relating to this subject are two documents,
The first entitled "agricultural justification form" is signed by John T Davies (Director), and, after giving details of the farm and stocking levels, it ends with a declaration on the "...reasons why the proposed development is required" which reads "There is a real need for a second dwelling to accomodate a full time herdsman/GFW. A farm of this magnitude is expected to to provide on farm accomodation."
The other, a memo from Geoff Kingston, principle surveyor (Pembrokeshire County Council), reads: "This site was inspected in the presence of the applicant on 13 January [2005] when I also had the opportunity to inspect the business accounts.
"Firstly it has to be said that the business meets the requirements of both the functional and financial tests and the application is therefore supported."
What is noticeable about both Cllr Davies' statement, and that of Mr Kingston, is that they consist entirely of assertions, unsupported by even the barest shred of evidence.
The truth is that there are no "proposals for major change in the nature and scale" of the existing enterprise to justify this application.
The changes that have occurred are in the "nature and scale" of Cllr Davies' activities; from farmer to full-time politician.
The solution to that problem is for the herdsman to move into the existing farmhouse and for Cllr Davies to take up residence in some "nearby settlement".
After all, there is no requirement that a retired or semi-retired farmer who becomes Leader of the county council should live on a farm.
That seems to be the view taken by the same planning officer in respect of an application in the same area which was determined at much the same time.
Refusing the application under his delegated powers the officer concludes: "The reason given for the proposed development refers to one of the [existing] dwellings being occupied by an employee coming up for retirement with there being no desire to ask the employee to vacate the dwelling for the replacement member of staff. Although I can understand the reasons for this course of action and appreciate that a new member of staff may expect a dwelling to be available, the planning system is concerned with the needs of the agricultural unit and not the personal preferences or circumstances of the individuals involved. Although the retiree may still be involved in some work on the holding this would at best be a part-time requirement which would not merit the provision of a dwelling either directly or as in this case indirectly."
In that case the employee was retiring from farming because of age, whereas in Cllr Davies' case he has retired because he has found more congenial employment elsewhere.
I can think of no compelling reason why the two cases should be treated differently.
After all, as the planning officer quite rightly says, it is the needs of the business that are crucial ". . . not the personal preferences or circumstances of the individuals involved."
What is also interesting is that the county council's estates department found in both cases that there was a functional need for an additional dwelling and that this finding was overruled by the planning officer in the one case but not the other.
The "functional need" test having been satisfied, the next consideration is the size and scale of the dwelling under the provisions of paragraphs 46 and 47 (see above).
Paragraph 46 need not detain us, but 47, which lays down the criteria for determining the scale of the building, is of crucial importance.
The purpose of para 47 is to plug the gap between the precise definition of the "functional need" and the generalised wording of the standard agricultural occupancy condition.
In the present case, the "functional need" on which the application is based is to provide a dwelling for a herdsman.
However the agricultural occupancy condition does not require that the dwelling be occupied by a herdsman but ". . . will be limited to a person solely or mainly working or last working in the locality in agriculture or forestry, or a widow or widower of such a person, and to any resident dependents.
So, the occupant might be the herdsman or he/she could be all sorts of other people.
For instance, a farmer with a large dairy herd could obtain consent because of the proven need for a herdsman, then, once the consent is safely in the bag, he could sell off the cows - negating the need for the herdsman - and build himself a retirement home.
In an attempt to block this loophole WAG have brought in para 47 on the basis that that particular scam will be less attractive if the size of the dwelling is restricted that that appropriate for the original functional need.
In a letter to Cwmbetws Ltd's architects, dated 13 April 2005, the planning officer set out this principle with exemplary clarity.
He wrote: "Scale- The advice set out in TAN 6 requires new agricultural workers dwellings to satisfy both a financial and a functional test.
Paragraph 47 [see above] states that dwellings should be of a size commensurate with the established functional requirement. In this case the functional requirement is for a herdsman/GFW and as such the dwelling should reflect that functional requirement. I do not consider that the proposal which has a gross floor area (excluding the garage) of approximately 315 square metres (3400 square feet) is of a scale reflecting the functional requirements of the holding. I would suggest that a gross floorspace in the region of 115 to 140 square metres (1250 to 1500 square feet) would be more appropriate to the functional needs of the holding."
What is difficult to understand is why, just five weeks later, he was recommending that the planning committee approve a dwelling double the size of that which he thought "appropriate".
Even more difficult to understand is why his report to the committee, in which he said: "Although the proposed dwelling is only a 3 bedroom unit it has a gross external floor space of 260 square metres (2,800 square feet) and consideration needs to be given to a financial test to establish the size of dwelling that the agricultural unit can sustain. An assessment has been made of the farm accounts over the past three years and there is evidence of a healthy profit sufficient to fund the size of dwelling proposed. As such the farming enterprise is considered to be economically viable and capable of sustaining the size of dwelling proposed." makes no mention whatsoever of para 47 or of the need for the size of the dwelling to reflect the "established functional requirement".
Stanger still is the complete failure of any of the three officers present (Roger Barrett-Evans, David Lawrence and David Popplewell) to explain para 47 to the members even after Cllrs John Cole, Tony Brinsden and Malcolm Calver raised the question of dwelling's size.
Cllr Calver had even armed himself with a copy of para 47 which he started to read out only to be silenced by the Chairman, Cllr Bill Hitchings.
Now Cllr Davies has told the Mercury: "The company has sold most of the milking portion of the dairy herd in the past few months. . . ".
When the planning committee met on 24 May it was told that the farm is supporting 165 dairy cattle and that because of "the size of the holding and the farming regime" their is a functional need for an additional dwelling.
Of course, with the milking cows gone the farming regime was entirely different to that on which the planning committees decision was based.
What is surprising, to say the least, is that Cllr Davies didn't inform the council of these changes and allowed the planning committee to proceed on what now turns out to be a false prospectus.

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