Immunity claim in support of breach of occupancy condition rejected

The Court of Appeal upheld a decision of Mr Justice Hickinbottom who had supported an inspector's decision to reject a claim by the owner of a farmhouse in Worcestershire, that a condition restricting occupation of the dwelling had been breached for over 20 years and was no longer enforceable (DCS Number 400-002-009).

The wife ran the small farm on which she, her husband and children had lived for 21 years. The wife spent only a proportion of her time running the farm which had never made a profit and the family lived on the husband’s earnings. The condition at the centre of the dispute stated that occupation should be restricted to agricultural workers and the dependants which shall include a widow or widower of such persons. The claimants argued that since the husband and children were not dependants of the wife given that they were not even financially dependent on her, they must always have been in breach of the condition and therefore immune from enforcement action. The planning inspector and High Court judge rejected this claim concluding that the term "dependency" was wider in scope.

Lord Justice Richards ruled that as a matter of ordinary language "dependants" was capable of referring to relationships involving non-financial dependency. Within a family home, spouses could sensibly be described as dependent on each other and children dependent on both parents irrespective of the financial contribution of each spouse/parent. Emotional support and care were equally important and this family relationship was expressly acknowledged in the condition since it referred to widow and widower. It also made clear that it encompassed a family living together.
In the court’s opinion there was nothing in the condition which required the agricultural worker to provide the main means of financial support. Nor that the business had to be profitable and that any money generated had to be re-invested in the business. The challenge was therefore rejected.

Shortt v Secretary of State for Communities and Local Government

Date: 18 November 2015

Ref: C1/2014/2639

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