The council made legal submissions which alleged that the appellant had no right to access the appeal site by mechanically propelled vehicles (MPV) because it would require the use of a public footpath. Under s49(1)(b) of the Road Traffic Act 1988 the use of a MPV on a public footpath was a criminal offence and granting planning permission would therefore be contrary to its duty under s17 of the Crime and Disorder Act 1988 and the provisions of s45 of the Serious Crimes Act 2007. Irrespective of whether the appellant could prove a long standing right to access the land for agricultural purposes, the siting of a mobile home would involve a completely new development for which no rights had ever existed.
The appellant in response argued that the current landowner had a private right of access to the appeal site, a point disputed by the council, and this would pass to him after the site had been purchased. This right applied to both the horticultural buildings and the mobile home which would support the enterprise and be ancillary thereto.
In ruling on this matter the inspector concluded that the grant of planning permission was essentially neutral. It did not require the appellant to implement the permissions and private property disputes were outside his remit as an inspector to resolve. Allowing the appeals would not affect any legal rights or constraints that might exist and while he did not underestimate the issues raised by the 2007 act, in his opinion, it would be unreasonable to dismiss both appeals solely on the grounds that the appellant, after acquiring the land, would commit an offence by accessing it using a MPV. Therefore, he held that only the planning merits fell to be considered.
Establishing a horticultural enterprise was acceptable in principle given the rural nature of the appeal site which comprised a single field of under three hectares, largely bounded by high hedges. The visual impact would be relatively limited and the trips associated with the horticultural use would be less than ten per day. This was unlikely to have any significant impact on users of the lane and public footpath or impact on the amenity of residents living along the route.
The inspector was unable to reach a favourable conclusion in respect of the mobile home, however. The appellant proposed to grow organic crops and his own consultant stated that a successful horticultural operation of the scale planned required an on-site presence.
The inspector accepted that a functional need had been established. The flaw in the appellant’s case lay in his acceptance that growing crops would not be produced until 2016 after the glasshouse and other buildings had been erected. Thus, a mobile home would be sited on the land for a significant period until the enterprise had been established and would ultimately be required for up to six years. It was therefore premature to grant such a permission until the enterprise had become established.
Inspector Roger Pritchard; Inquiry